[Federal Register Volume 85, Number 6 (Thursday, January 9, 2020)]
[Notices]
[Pages 1140-1152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00122]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XR048]


Take of Marine Mammals Incidental to Specified Activities; Taking 
Marine Mammals Incidental to the North Jetty Maintenance and Repairs 
Project, Coos Bay, Oregon

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

ACTION: Notice; Issuance of Incidental Harassment Authorizations.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued incidental harassment authorizations (IHAs) to the 
U.S. Army Corps of Engineers (USACE) to incidentally harass, by Level B 
harassment only, marine mammals during pile driving and removal 
activities over two years associated with the Coos Bay North Jetty 
maintenance and repairs project.

DATES: These Authorizations are effective from September 1, 2020 
through August 31, 2021 (pile driving removal (Year 1)) and July 1, 
2022 through June 30, 2023 (pile driving installation (Year 2)).

FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/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. Under the MMPA, ``take'' is defined as meaning to harass, 
hunt, capture, or kill, or attempt to harass, hunt, capture, or kill 
any marine mammal.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth. The definitions 
of all applicable MMPA statutory terms cited above are included in the 
relevant sections below.

Summary of Request

    On March 18, 2019, NMFS received a request from USACE for two IHAs 
to take marine mammals incidental to vibratory pile driving and removal 
associated with the North Jetty maintenance and repairs project, Coos 
Bay, Oregon over the course of two years with pile installation 
occurring during Year 1 and pile removal occurring during Year 2. The 
application was deemed adequate and complete on September 10, 2019. The 
USACE's request was for take of a small number of seven species of 
marine mammals by Level B harassment only. Neither USACE nor NMFS 
expects injury, serious injury or mortality to result from this 
activity and, therefore, IHAs are appropriate. The USACE, in 
coordination with the Oregon Department of Fish and Wildlife (ODFW) and 
NMFS' Northwest Region, plans to conduct pile driving and removal 
October 1st through February 15th and June 1st and July 31st to 
minimize effects to listed salmonids. Adherence to the in-water work 
window is part of USACE's Endangered Species Act (ESA) consultation 
under Standard Local Operating Procedures for Endangered Species 
(SLOPES) to administer actions authorized or carried out by the USACE 
in Oregon (SLOPES IV In-water Over-water Structures). The ODFW will 
make the final determination of the in-water work window.

Description of Planned Activity

    Coos Bay is an approximately 55.28 km\2\ estuary located in Coos 
County on the Oregon coast, approximately 200 miles south of the 
Columbia River. The USACE plans to repair critically damaged sections 
of the North Jetty, monitor erosion, and to maintain stable deep-draft 
navigation through the entrance into Coos Bay. Repair activities 
completed now will reduce the risk of jetty failure or a potential 
breach of the Coos Bay North Spit (CBNS). The USACE maintains this 
jetty system and navigational channels, and is planning on conducting 
major repairs and rehabilitation of the North Jetty. The USACE plans to 
use vibratory pile driving/removal for the Material Off-loading 
Facility (MOF) portion of the

[[Page 1141]]

project using 30-inch (in) steel piles and 24-in AZ sheet piles OR 12-
in H piles.
    The USACE currently anticipates that construction for North Jetty 
maintenance and repair project will occur over two years. The IHA 
application is requesting take that may occur from the pile driving 
activities in the first year (September 1, 2020 through August 31, 
2021) and from pile removal activities in the second year of pile 
driving activities (July 1, 2022 through June 30, 2023). The USACE 
proposes to complete pile driving activities between October 1st 
through February 15th and June 1st through July 31st each year to 
protect salmonids. There would be an estimate of 7 days of noise expose 
during pile driving/removal for each type of pile (i.e., and 30-in 
steel piles and 24-in AZ sheet piles OR 12-in H piles) for a total of 
14 days of pile driving/removal activity each year. Pile driving/
removal may occur up to 6 hours per day depending on the pile type.
    The purpose of the planned action is to repair critically damaged 
sections of the North Jetty in order to maintain stable deep-draft 
navigation through the entrance into Coos Bay and to prevent breaching 
of the CBNS. The planned activities would include repair activities for 
three main jetty components: The jetty head, root, and trunk. Repair 
activities also require re-establishment and repair of the following 
three temporary construction features including the MOF, upland staging 
areas and road turn-outs to facilitate equipment and material delivery. 
Removal and site restoration for each of the temporary construction 
features is planned. The majority of planned jetty repairs will be 
completed within the existing authorized footprint of the jetty 
structure, returning specified sections to pre-erosional conditions. 
The MOF Staging Area is where all pile driving and removal activities 
will occur. The type and amount of piles associated with the project 
are provided in Table 1.

Table 1--Pile Driving (Year 1) and Removal (Year 2) Associated With the MOF of the North Jetty Repairs and Maintenance Project. The Same Number of Piles
                                                       Driven in Year 1 Will Be Removed in Year 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Total number    Total number   Maximum number  Maximum number
                                                          of piles to be  of piles to be     of piles        of piles
                Pile type                   Size (inch)    driven (year    removed (year  driven per day    removed per            Driving type
                                                                1)              2)           (year 1)      day (year 2)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Steel Pipe Pile.........................              30              24              24               6               6  Vibratory.
Steel H Pile............................              12              40              40              25              25  Vibratory.
Steel AZ Sheet..........................              24             100             100              25              25  Vibratory.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    A detailed description of the planned construction project is 
provided in the Federal Register notice for the proposed IHA (84 FR 
56781; October 23, 2019). Since that time, no changes have been made to 
the planned construction activities. Therefore, a detailed description 
is not provided here. Please refer to that Federal Register notice for 
the description of the specific activity.
    Planned mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Mitigation and 
Monitoring and Reporting section).

Comments and Responses

    A notice of NMFS's proposal to issue IHAs to the USACE was 
published in the Federal Register on October 23, 2019 (84 FR 56781). 
That notice described, in detail, the USACE's activity, the marine 
mammal species that may be affected by the activity, and the 
anticipated effects on marine mammals. During the 30-day public comment 
period, NMFS received a comment letter from the Marine Mammal 
Commission (Commission).
    Comment: The Commission believes that NMFS underestimated the 
number of takes for harbor seals. The Commission states that if NMFS 
was going to continue to use a density to estimate take that a haul out 
correction factor should be applied. However, this still may not 
account for seals that used the Southern Slough (most southern haul out 
site of the project area). The Commission recommends that NMFS 
authorize at least 167 Level B harassment takes of harbor seals on each 
of the 14 days that the proposed activities could occur for both 
authorizations using counts rather than densities to estimate the 
numbers of takes.
    Response: In the proposed IHA, NMFS used the harbor seal density of 
11.1 animals/km\2\ which was based on the max number observed of seals 
observed (167 harbor seals) in November 2018 on the Clam Island haul 
out. This max number may or may not account for seals that also use the 
Southern Slough haul out site as well, which is just at the southern 
border of the project area, as the seals can utilize the entire bay. 
For consistency in the method used to calculate take across all 
pinnipeds, and to account for additional harbor seals that may be using 
the Southern Slough haul out, NMFS recalculated the estimated take for 
harbor seals using the maximum number of seals that could occur on a 
given day (167 seals) and multiplied that by 14 days for a total take 
estimate of 2,338 harbor seals each year.
    Comment: The Commission states that it is unclear whether the USACE 
would keep a running tally of the extrapolated takes to ensure the 
authorized takes are not exceeded. The Commission notes that they do 
not believe that keeping track of only the observed takes is sufficient 
when the Level B harassment zones extend to more than 11 km and 
recommends adjusting the takes based on the extent of the Level B 
harassment zone based on the sighting distance and number of PSOs 
monitoring at a given time. The Commission recommends that NMFS ensure 
that the USACE keeps a running tally of the total takes for each 
species to comply with section 4(f) of the draft authorization (``If a 
species for which authorization has not been granted, or a species for 
which authorization has been granted but the authorized takes are met, 
is observed entering or within the Level B harassment zone (monitoring 
zone), pile driving and removal activities must shut down immediately 
using delay and shutdown procedures. Activities must not resume until 
the animal has been confirmed to have left the area or the 15 minute 
observation time period has elapsed.''). The Commission recommends that 
NMFS ensure that USACE keep a running tally of the total takes, both 
observed and extrapolated takes, for each species in the IHAs.
    Response: We agree that USACE must ensure they do not exceed 
authorized takes. We have included in the authorization that Carnival 
must include extrapolation of the estimated takes by Level B harassment 
based on

[[Page 1142]]

the number of observed exposures within the Level B harassment zone and 
the percentage of the Level B harassment zone that was not visible in 
the draft and final reports.
    Comment: The Commission recommends that NMFS refrain from using the 
proposed renewal process for the USACE's authorizations. The Commission 
stated that the renewal process should be used sparingly and 
selectively, by limiting its use only to those proposed incidental 
harassment authorizations that are expected to have the lowest levels 
of impacts to marine mammals and that require the least complex 
analyses.
    The Commission also commented that the additional 15-day comment 
period for Renewals places a burden on reviewers who will need to 
review the original authorization and numerous supporting documents and 
then formulate comments very quickly. Therefore, the Commission 
recommends and NMFS provides the Commission and other reviewers the 
full 30-day comment opportunity set forth in section 101(a)(5)(D)(iii) 
of the MMPA.
    Response: We appreciate the Commission's input and direct the 
reader to our recent response to the same comment, which can be found 
at 84 FR 52464 (October 2, 2019), pg. 52466. If and when the USACE 
requests a Renewal, we will consider the Commission's comment further 
and address the concerns specific to this project.

Changes From the Proposed IHA to the Final IHA

    Stock abundance updates to Table 2 (Marine Mammals Occurrence in 
the Project Area) were made for harbor porpoise, humpback whale, and 
blue whale as the 2019 draft Stock Assessment Reports published on 
November 27, 2019 (84 FR 65353). Minor corrections have been made to 
the estimated take table (see Table 8) and are described below. As 
described in the Comments and Responses section, Level B harassment 
takes were increased for harbor seals. To be more conservative, takes 
were slightly adjusted for California sea lions and Steller sea lions. 
Takes were increased from 1 to 3 California sea lions per day, and from 
1 to 2 Steller sea lions per day. This increased the yearly total takes 
from 14 to 42 California sea lions and 14 to 28 for Steller sea lions. 
For Northern elephant seals, we reconsidered the method in which take 
was calculated and re-calculated takes using anecdotal information for 
Coos Bay. Northern elephant seals have not been observed in Coos Bay, 
rather nearby Cape Argo which is 6 km from the project area. For gray 
whales and harbor porpoise, NMFS recognizes that the densities only 
accounted for population growth up until 2019. NMFS adjusted this to 
account growth through 2022 as work for pile driving removal will begin 
in 2022. The estimated takes remain unchanged despite this correction.

Description of Marine Mammals in the Area of Specified Activities

    Systematic marine mammal surveys in Coos Bay are limited; 
therefore, the USACE relied on two multi-day AECOM surveys of Coos Bay, 
Oregon Department of Fish and Wildlife (ODFW), and anecdotal reports to 
better understand marine mammal presence in Coos Bay and in support of 
the IHA application. Seven marine mammal species comprising seven 
stocks have the potential to occur within Coos Bay during the project.
    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species with expected potential for occurrence 
around Coos Bay 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 values presented in Table 2 are the most recent 
available at the time of publication and are available in the NMFS' 
draft 2019 SARs and final 2018 SARs for the U.S. Pacific and Alaska 
(e.g., Carretta et al., 2018, 2019; Muto et al., 2018) (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports).

                                                 Table 2--Marine Mammals Occurrence in the 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 Balaenopteridae (rorquals):
    Blue whale......................  Balaenoptera m.          Eastern North Pacific    E,D;Y               1,496 (0.44; 1,050;          1.23       1.84
                                       musculus.                Stock.                                       2014).
    Humpback whale..................  Megaptera novaeangliae.  California/Oregon/       E,D;Y               2,900 (0.048 2,784;          16.7       42.1
                                                                Washington Stock.                            2014).
Family Eschrichtiidae:
    Gray whale......................  Eschrichtius robustus..  Eastern North Pacific..  N, N                26,960 (0.05, 25,849,         801        139
                                                                                                             2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:

[[Page 1143]]

 
    Killer Whale....................  Orcinus orca...........  West Coast Transient...  N, N                243 (-, 243, 2006) \4\        2.4          0
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Northern CA/Southern OR  N, N                24,195 (0.40, 17,447,         349      >=0.2
                                                                                                             2011 and 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    Northern elephant seal..........  Mirounga angustirostris  California breeding....  N, N                179,000 (n/a, 81,368,       4,882        8.8
                                                                                                             2010).
    Steller sea lion................  Eumetopias jubatus.....  Eastern U.S............  N, N                41,638 (-, 41,638,          2,498        108
                                                                                                             2015).
    California sea lion.............  Zalophus californianus.  U.S....................  N, N                257,606 (n/a, 233,515,     14,011       >320
                                                                                                             2014).
Family Phocidae (earless seals):
    Harbor seal.....................  Phoca vitulina.........  Oregon/Washington Coast  N, N                24,732 (0.12, -, 1999)        unk        unk
                                                                                                             \5\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
  stock abundance.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated
  with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The minimum population estimate (NMIN) for the West Coast Transient stock of killer whales is derived from mark-recapture analysis for West Coast
  transient population whales from the inside waters of Alaska and British Columbia of 243 whales (95 percent probability interval = 180-339) in 2006
  (DFO 2009), which includes animals found in Canadian waters.
\5\ Because the most recent abundance estimate is >8 years old (1999), there is no current estimate of abundance available for this stock. However, for
  purposes of this analysis, we apply the previous abundance estimate, corrected for animals missed in the water as described in Carretta et al. (2014)
  of 24,732.

    All species that could potentially occur in the project area are 
included in Table 2. Humpback whales and blue whales are not uncommon 
along the Oregon coast, however, they are unlikely to enter Coos Bay 
and be affected by construction noise. Given these considerations, the 
temporary duration of potential pile driving, and noise isopleths that 
would not extend beyond the river mouth, there is no reasonable 
expectation for planned activities to affect these species and they are 
not discussed further.
    A detailed description of the of the species likely to be affected 
by the 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 
56781; October 23, 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. Please also refer to NMFS' 
website (https://www.fisheries.noaa.gov/find-species), for generalized 
species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects from underwater noise from the USACE's pile driving and 
removal activities have the potential to result in Level B harassment 
only of marine mammals in the vicinity of the project area. The Federal 
Register notice for the proposed IHA (84 FR 56781; October 23, 2019) 
included a discussion of the effects of anthropogenic noise on marine 
mammals and their habitat, therefore that information is not repeated 
here; please refer to that Federal Register notice (84 FR 56781; 
October 23, 2019) for that information. No instances of serious injury 
or mortality are expected as a result of the planned activities.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through these IHAs, which will inform both NMFS' 
consideration of ``small numbers'' and the negligible impact 
determinations.
    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).
    Take of marine mammals incidental to USACE's pile driving and 
removal activities could occur by Level B harassment only, as pile 
driving has the potential to result in disruption of behavioral 
patterns for individual marine mammals. Based on the nature of the 
activity, Level A harassment is neither anticipated nor authorized. The 
planned mitigation and monitoring measures are expected to minimize the 
severity of such taking to the extent practicable. As described 
previously, no mortality is anticipated or authorized for this 
activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial

[[Page 1144]]

prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the authorized take 
estimates for each IHA.

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--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., impact pile 
driving seismic airguns) or intermittent (e.g., scientific sonar) 
sources. The USACE's planned activities include the use of continuous, 
non-impulsive (vibratory pile driving) therefore, the 120 dB re 1 
[mu]Pa (rms) is applicable.
    Level A Harassment--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. The 
technical guidance identifies the received levels, or thresholds, above 
which individual marine mammals are predicted to experience changes in 
their hearing sensitivity for all underwater anthropogenic sound 
sources, and reflects the best available science on the potential for 
noise to affect auditory sensitivity by:
    [ssquf] Dividing sound sources into two groups (i.e., impulsive and 
non- impulsive) based on their potential to affect hearing sensitivity;
    [ssquf] Choosing metrics that best address the impacts of noise on 
hearing sensitivity, i.e., sound pressure level (peak SPL) and sound 
exposure level (SEL) (also accounts for duration of exposure); and
    [ssquf] Dividing marine mammals into hearing groups and developing 
auditory weighting functions based on the science supporting that not 
all marine mammals hear and use sound in the same manner.
    These thresholds were developed by compiling and synthesizing the 
best available science, and are provided in Table 3 below. The 
references, analysis, and methodology used in the development of the 
thresholds are described in NMFS 2018 Technical Guidance, which may be 
accessed at https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technicalguidance.

                     Table 3--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.
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

[[Page 1145]]

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 source level 
measurements available for certain pile types and sizes from the 
similar environments recorded from underwater pile driving projects 
(CALTRANS 2015, WSDOT 2010) that were used to determine reasonable 
sound source levels likely result from the USACE's pile driving and 
removal activities (Table 4).

Table 4--Predicted Sound Source Levels for Both Installation and Removal
                                of Piles
------------------------------------------------------------------------
                                                           Sound source
                                                            level at 10
                        Pile type                          meters dBRMS
 
------------------------------------------------------------------------
12-inch steel H-pile \1\................................             150
24-inch AZ steel sheet \1\..............................             160
30-inch steel pipe pile \2\.............................             164
------------------------------------------------------------------------
\1\ Average typical sound pressure levels referenced from Caltrans
  (2015) and were either measured or standardized to 10 m from the pile.
\2\ Average sound pressure levels measured at the Vashon Ferry Terminal
  (WSDOT, 2010).

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 from 
vibratory 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 incur PTS. Inputs used in the 
User Spreadsheet (Table 5), and the resulting isopleths are reported 
below (Table 6).

  Table 5--NMFS Technical Guidance (2018) User Spreadsheet Input To Calculate PTS Isopleths for Vibratory Pile
                                                     Driving
        [User spreadsheet input--vibratory pile driving spreadsheet Tab A.1 vibratory pile driving used]
----------------------------------------------------------------------------------------------------------------
                                                           12-in H piles    24-in sheet piles     30-in piles
                                                         (install/removal)  (install/removal)   (install/remove)
----------------------------------------------------------------------------------------------------------------
Source Level (RMS SPL).................................                150                160                164
Weighting Factor Adjustment (kHz)......................                2.5                2.5                2.5
Number of piles within 24-hr period....................                 25                 25                  6
Duration to drive a single pile (min)..................                 10                 10                 60
Propagation (xLogR)....................................                 15                 15                 15
Distance of source level measurement (meters) +........                 10                 10                 10
----------------------------------------------------------------------------------------------------------------


 Table 6--NMFS Technical Guidance (2018) User Spreadsheet Outputs To Calculate Level A Harassment PTS Isopleths
----------------------------------------------------------------------------------------------------------------
            User spreadsheet output                                   PTS isopleths (meters)
----------------------------------------------------------------------------------------------------------------
                                       Sound                            Level A harassment
                                       source   ----------------------------------------------------------------
             Activity                 level at       Low-         Mid-        High-
                                     10 m  (dB    frequency    frequency    frequency      Phocid      Otariid
                                        SPL)      Cetaceans    cetaceans    Cetaceans
----------------------------------------------------------------------------------------------------------------
                                         Vibratory Pile Driving/Removal
----------------------------------------------------------------------------------------------------------------
12-in H pile steel installation/            150          3.3          0.3          4.8          2.0          0.1
 removal..........................
24-in sheet pile installation/              160         15.2          1.3         22.4          9.2          0.6
 removal..........................

[[Page 1146]]

 
30-in pile installation/removal...          164         35.7          3.2         52.8         21.7          1.5
----------------------------------------------------------------------------------------------------------------

Level B Harassment
    Utilizing the practical spreading loss model, USACE determined 
underwater noise will fall below the behavioral effects threshold of 
120 dB rms for marine mammals at the distances shown in Table 7 for 
vibratory pile driving/removal. Table 7 below provides all Level B 
harassment radial distances (m) and their corresponding areas (km\2\) 
during the USACE's planned activities. It is undetermined whether sheet 
piles, H-piles, or a combination of the two will be used for MOF 
construction; therefore, the USACE estimated potential take based on 
the larger disturbance zone for Level B harassment (i.e., for sheet 
pile--9.1 km\2\) for the 12-inch H pile Level B harassment zone.

   Table 7--Radial Distances (Meters) to Relevant Behavioral Isopleths and Associated Ensonified Areas (Square
                             Kilometers (km\2\)) Using the Practical Spreading Model
----------------------------------------------------------------------------------------------------------------
                                                                  Received level      Level B         Level B
                            Activity                                at 10 m (dB     harassment      harassment
                                                                       SPL)         zone (m) *     zone (km\2\)
----------------------------------------------------------------------------------------------------------------
                                         Vibratory Pile Driving/Removal
----------------------------------------------------------------------------------------------------------------
12-inch H piles installation/removal............................             150           1,000           * 9.1
24-inch sheet pile installation/removal.........................             160           4,642             9.1
30-inch pile installation/removal...............................             164           8,577            11.5
----------------------------------------------------------------------------------------------------------------
* (actual calculated zone is 2).

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 vibratory pile driving/removal for 
each acoustic threshold were estimated using group size estimates and 
local observational data to create a density estimate. As previously 
stated, take by Level B harassment only will be considered for this 
action. Distances to Level A harassment thresholds are relatively small 
and mitigation is expected to avoid Level A harassment from these 
activities.

Harbor Seals

    Over the last several decades, intermittent and independent surveys 
of harbor seal haul outs in Coos Bay have been conducted. The most 
recent aerial survey of haulouts occurred in 2014 by ODFW. Those 
surveys were conducted during a time when the highest number of animals 
would be expected to haul out (i.e., the latter portion of the pupping 
season (May and June) and at low tide). In 2014, 333 seals were 
observed at Coos Bay haulouts in June (Wright, pers comm., August 27, 
2019).
    AECOM conducted surveys vessel-based surveys in May/June 2017 and 
November 2018 from the Highway 101 Bridge to the seaward entrance to 
the Coos Bay estuary. In 2017, during the line transect surveys, there 
were an estimated 374 harbor seals counted in 19 groups with a relative 
density of 6.2 harbor seals/km. In 2018, because of the low number of 
harbor seals sightings during the line transect effort, reliable 
statistical estimates of species density could not be accurately 
calculated. However, for comparison with the May 2017 data, the number 
of seals observed/km yielded a sighting rate of 0.12 harbor seals/km.
    AECOM also conducted three days of aerial (drone) flyovers at the 
Clam Island and Pigeon Point haulouts to capture aerial imagery during 
November and December 2018 to determine a fall/winter estimate for 
harbor seals. This aerial field effort observed a maximum of 167 harbor 
seals hauled out at Clam Island and 41 harbor seals hauled out at 
Pigeon Point on any one day. Based on these counts, an estimate of 
relative density was determined for the study area and ranged from 8.5-
11.1 harbor seals/km\2\.
    The estimated take for each IHA was calculated using the maximum 
number of harbor seals (167) multiplied by the number of days per 
activity (e.g., 7 days of vibratory pile driving/removal per pile type 
for a total of 14 days of pile driving/removal activity each year). 
Therefore, a total of 2,338 instances of take by Level B harassment are 
planned for harbor seals in both Year 1 for installation and in Year 2 
for removal (Table 8). Because the Level A harassment zones are 
relatively small (21.7 m at the largest for pile driving/removal of 30-
in piles), and activities will occur over a small number of days, we 
believe the Protected Species Observer (PSO) will be able to 
effectively monitor the Level A harassment zones and we do not 
anticipate take by Level A harassment of harbor seals.

California Sea Lions and Steller Sea Lions

    No data are available to calculate density estimates California sea 
lion and Steller sea lions; therefore, USACE considers likely 
occurrences in estimating take for California sea lions and Steller sea 
lions. As described in the Description of Marine Mammals section, no 
haul outs for California sea lions and Steller sea lions exist within 
Coos Bay where harassment from exposure to pile driving could occur, 
however, these species do haul out on

[[Page 1147]]

the beaches adjacent to the entrance to Coos Bay. These animals forage 
individually and seasonal use of Coos Bay have been observed, primarily 
in the spring and summer when prey are present. The estimate for daily 
California sea lion and Steller sea lions abundance (n = 1) was based 
on recent marine mammal surveys in Coos Bay (AECOM 2017). It is 
unclear, but possible that two California sea lions may have been seen 
in one day.
    Therefore, to be conservative, we estimate three California sea 
lions and one Steller sea lion may be present each day of pile driving. 
We multiplied three California sea lions and one Steller sea lions by 
the number of days per activity (e.g., 7 days of vibratory pile 
driving/removal per pile type for a total of 14 days of pile driving/
removal activity each year). Therefore, a total of 42 and 28 instances 
of take by Level B harassment are planned for California sea lions and 
Steller sea lions respectively in both Year 1 for installation and in 
Year 2 for removal (Table 8). Because the Level A harassment zones are 
relatively small (Less than 2 m at the largest for pile driving/removal 
of 30-in piles), and activities will occur over a small number of days, 
we believe the PSO will be able to effectively monitor the Level A 
harassment zones and we do not anticipate take by Level A harassment of 
California sea lions or Steller sea lions.

Northern Elephant Seals

    Northern elephant seals have not been observed in Coos Bay, but at 
Cape Argo, a predominant haul out 6 km from Coos Bay jetties. It is 
unlikely Northern elephant seals will be in Coos Bay, but to be 
conservative, we estimate one Northern elephant seal may be present 
each day of pile driving. We multiplied one Northern elephant seal by 
the number of days per activity (e.g., 7 days of vibratory pile 
driving/removal per pile type for a total of 14 days of pile driving/
removal activity each year). Therefore, a total of 14 instances of take 
by Level B harassment are planned for Northern elephant seals in both 
Year 1 for installation and in Year 2 for removal (Table 8). Because 
the Level A harassment zones are relatively small (21.7-m isopleth at 
the largest for pile driving/removal of 30-in piles), and activities 
will occur over a small number of days, we believe the PSO will be able 
to effectively monitor the Level A harassment zones and we do not 
anticipate take by Level A harassment of Northern elephant seals.

Killer Whales

    It is not possible to calculate density for killer whales in Coos 
Bay as they are not present in great abundance; therefore, USACE 
estimates take based on likely occurrence and considers group size. 
During migration, the species typically travels singly or as a mother 
and calf pair. This species has been reported in Coos Bay only a few 
times in the last decade. The typical group size for transient killer 
whales is two to four, consisting of a mother and her offspring (Orca 
Network 2018). Males and young females also may form small groups of 
around three for hunting purposes (Orca Network 2018). Previous 
sightings in Coos Bay documented a group of five transient killer 
whales in May 2007 (as reported by the Seattle Times) and a pair of 
killer whales were observed during the 2017 May surveys. USACE assumes 
that a group of two killer whales come into Coos Bay and could enter a 
Level B harassment zone for one day in each year of pile driving/
removal activities. Therefore, a total of two instances of take by 
Level B harassment are planned for killer whales in both Year 1 for 
installation and in Year 2 for removal (Table 8). Because the Level A 
harassment zones are relatively small (Less than a 4-m isopleth at the 
largest for pile driving/removal of 30-in piles), and activities will 
occur over a small number of days, we believe the PSO will be able to 
effectively monitor the Level A harassment zones and we do not 
anticipate take by Level A harassment of killer whales.

Harbor Porpoise

    It is not possible to calculate density for harbor porpoise in Coos 
Bay as they are not present in great abundance; therefore, USACE 
estimates take based on likely occurrence and considers group size. 
Harbor porpoise are most often seen singly, in pairs, or in groups of 
up to 10, although there are reports of aggregations of up to 200 
harbor porpoises. No harbor porpoises were detected during recent 
marine mammal surveys within the Coos Bay estuary (AECOM 2017, 2018). 
However, harbor porpoises were counted during aerial surveys of marine 
mammals off the coasts of California, Oregon, and Washington. The 
maximum estimated count of harbor porpoises within approximately 1,700 
km\2\ of Coos Bay (n=24 in January 2011) was the basis for estimated 
abundance (Adams et al., 2014). USACE applied a 4 percent annual 
population growth rate (NMFS 2013a) to approximate the relative 
abundance of harbor porpoises through 2022 (i.e., n=37). Lastly, an 
estimated density of harbor porpoise was calculated across 
approximately 1,700 km\2\ as a basis for determining the number of 
animals that could be present in Level B harassment zones during 
vibratory pile driving activities. This calculated density is 0.021 
harbor porpoise/km\2\. The estimated take was calculated using this 
density (0.021 animals/km\2\) multiplied by the area ensonified above 
the threshold (9.1 km\2\ for sheet piles and 11.5 km\2\ for 30-in 
piles) multiplied by the number of days per activity (e.g., 7 days of 
vibratory pile driving/removal per pile type for a total of 14 days of 
pile driving/removal activity each year). Therefore, a total of four 
instances of take by Level B harassment are planned for harbor porpoise 
in both Year 1 for installation and in Year 2 for removal (Table 8). 
Because the Level A harassment zones are relatively small (a 52.8-m 
isopleth at the largest for pile driving/removal of 30-in piles), and 
activities will occur over a small number of days, we believe the PSO 
will be able to effectively monitor the Level A harassment zones and we 
do not anticipate take by Level A harassment of harbor porpoise.

Gray Whales

    It is not possible to calculate density for gray whales in Coos Bay 
as they are not present in great abundance; therefore, USACE estimates 
take based on likely occurrence and considers group size. Gray whales 
are frequently observed traveling alone or in small, unstable groups, 
although large aggregations may be seen in feeding and breeding 
grounds. The maximum estimated count of gray whales within 
approximately 1,700 km\2\ of Coos Bay (n=10) was the basis for 
estimated abundance (Adams et al., 2014). USACE then applied a 6 
percent population growth rate (NOAA 2014b) to derive the current 
estimated abundance to approximate the relative abundance of gray 
whales through 2022 (i.e., n=20). Lastly, an estimated density of gray 
whales was calculated across approximately 1,700 km\2\ as a basis for 
determining the number of animals that could be present in Level B 
harassment zones during vibratory pile driving/removal activities. This 
calculated density is 0.0118 gray whales/km\2\. The estimated take was 
calculated using this density (0.0118 animals/km\2\) multiplied by the 
area ensonified above the threshold (9.1 km\2\ for sheet piles and 11.5 
km\2\ for 30-in piles) multiplied by the number of days per activity 
(e.g., 7 days of vibratory pile driving/removal per pile type, for a 
total of 14 days of pile driving/removal activity each year).

[[Page 1148]]

Therefore, a total of two instances of take by Level B harassment are 
planned for gray whales in both Year 1 for installation and in Year 2 
for removal (Table 8). Because the Level A harassment zones are 
relatively small (a 35.7-m isopleth at the largest for pile driving/
removal of 30-in piles), and activities will occur over a small number 
of days, we believe the PSO will be able to effectively monitor the 
Level A harassment zones and we do not anticipate take by Level A 
harassment of gray whales.
    For both year 1 and year 2, Table 8 below summarizes the authorized 
take for all the species described above as a percentage of stock 
abundance.

                                  Table 8--Authorized Take by Level B Harassment and as a Percentage of Stock Abundance
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Level B       Level B      Level B      Level B       Total take by Level B        Total take by Level B
                                           harassment    harassment    harassment   harassment     harassment (percent by       harassment (percent by
                                            AZ sheets      30-inch     AZ sheets     30-inch               stock)                       stock)
                                          (or H-plies)      piles        (or H-       piles    ---------------------------------------------------------
              Marine mammal              ----------------------------    plies)   -------------
                                                                     -------------
                                              YR-1          YR-1          YR-2         YR-2          YR-1 installation               YR-2 removal
                                          installation  installation    removal      removal
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal (Phoca vitulinai)...........         1,169         1,169        1,169        1,169  2,338 (less than 4 percent)  2,338 (less than 4
                                                                                                                              percent).
Northern Elephant seal (Mirounga                     7             7            7            7  14 (less than 1 percent)...  14 (less than 1 percent).
 angustirostris).
Steller sea lion (Eumetopias jubatus)...            14            14           14           14  28 (less than 1 percent)...  28 (less than 1 percent).
California sea lion (Zalophus                       21            21           21           21  42 (less than 1 percent)...  42 (less than 1 percent).
 californianus).
Gray whale (Eschrichtius robustus)......             1             1            1            1  2 (less than 1 percent)....  2 (less than 1 percent).
                                         ------------------------------------------------------
Killer whale (Orcinus orca).............               2
                                                       2                  2 (less      2 (less
                                                                           than 1       than 1
                                                                         percent)    percent).
                                         ------------------------------------------------------
Harbor porpoise (Phocoena phocoena).....             2             2            2            2  4 (less than 1 percent)....  4 (less than 1 percent).
--------------------------------------------------------------------------------------------------------------------------------------------------------

Planned 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.
    The following mitigation measures are included in the planned IHAs:

Timing Restrictions

    All work will be conducted during daylight hours. If poor 
environmental conditions restrict visibility full visibility of the 
shutdown zone, pile installation would be delayed.

Shutdown Zone for In-Water Heavy Machinery Work

    For in-water heavy machinery work other than pile driving, if a 
marine mammal comes within 10 m of such operations, operations shall 
cease and vessels shall reduce speed to the minimum level required to 
maintain steerage and safe working conditions.

Shutdown Zones

    For all pile driving/removal activities, the USACE will establish 
shutdown zones for a marine mammal species that is greater than its 
corresponding Level A harassment zone. To be conservative, the USACE is 
plans to implement one cetacean shutdown zone (55 m) and one pinniped 
shutdown zone (25 m) during any pile driving/removal activity (i.e., 
during sheet piles, H-piles, and 30-in steel pile installation and 
removal) (Table 9) which exceeds the maximum calculated PTS isopleths 
as described in Table 6. The purpose of a shutdown zone is generally to 
define an area within which shutdown of the activity would occur upon 
sighting of a marine mammal (or in anticipation of an animal entering 
the defined area).

[[Page 1149]]



                         Table 9--Pile Driving Shutdown Zones During Project Activities
----------------------------------------------------------------------------------------------------------------
                                               Shutdown zones (radial distance in m, area in km2 *)
                                 -------------------------------------------------------------------------------
            Activity                                                   High-
                                  Low- frequency  Mid- frequency     frequency        Phocid          Otariid
                                     cetaceans       cetaceans       cetaceans
----------------------------------------------------------------------------------------------------------------
                                        In-Water Construction Activities
----------------------------------------------------------------------------------------------------------------
Heavy machinery work (other than    10 (0.00015)    10 (0.00015)    10 (0.00015)    10 (0.00015)    10 (0.00015)
 pile driving)..................
----------------------------------------------------------------------------------------------------------------
                                         Vibratory Pile Driving/Removal
----------------------------------------------------------------------------------------------------------------
12-in H pile steel installation/    55 (0.00475)    55 (0.00475)    55 (0.00475)    25 (0.00098)    25 (0.00098)
 removal........................
24-in sheet pile installation/      55 (0.00475)    55 (0.00475)    55 (0.00475)    25 (0.00098)    25 (0.00098)
 removal........................
30-in pile installation/removal.    55 (0.00475)    55 (0.00475)    55 (0.00475)    25 (0.00098)    25 (0.00098)
----------------------------------------------------------------------------------------------------------------
* Note: km\2\ were divided by two to account for land.

Non-Authorized Take Prohibited

    If a species enters or approaches the Level B harassment zone and 
that species is either not authorized for take or its authorized takes 
are met, pile driving and removal activities must shut down immediately 
using delay and shutdown procedures. Activities must not resume until 
the animal has been confirmed to have left the area or an observation 
time period of 15 minutes has elapsed for pinnipeds and small cetaceans 
and 30 minutes for large whales.
    Based on our evaluation of the USACE's planned measures, NMFS has 
determined that the planned 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 
planned 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:
    [ssquf] Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
    [ssquf] 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);
    [ssquf] Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
    [ssquf] How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
    [ssquf] Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
    [ssquf] Mitigation and monitoring effectiveness.

Pre-Activity Monitoring

    Prior to the start of daily in-water construction activity, or 
whenever a break in pile driving of 30 min or longer occurs, PSOs will 
observe the shutdown and monitoring zones for a period of 30 min. The 
shutdown zone will be cleared when a marine mammal has not been 
observed within the zone for that 30-min period. If a marine mammal is 
observed within the shutdown zone, pile driving activities will not 
begin until the animal has left the shutdown zone or has not been 
observed for 15 min. If the Level B Harassment Monitoring Zone has been 
observed for 30 min and no marine mammals (for which take has not been 
authorized) are present within the zone, work can continue even if 
visibility becomes impaired within the Monitoring Zone. When a marine 
mammal permitted for Level B harassment take has been permitted is 
present in the Monitoring zone, piling activities may begin and Level B 
harassment take will be recorded.

Monitoring Zones

    The USACE will establish and observe monitoring zones for Level B 
harassment as presented in Table 7. The monitoring zones for this 
project are areas where SPLs are equal to or exceed 120 dB rms (for 
vibratory pile driving/removal). These zones provide utility for 
monitoring conducted for mitigation purposes (i.e., shutdown zone 
monitoring) by establishing monitoring protocols for areas adjacent to 
the shutdown zones. Monitoring of the Level B harassment zones enables 
observers to be aware of and communicate the presence of marine mammals 
in the project area, and thus prepare for potential shutdowns of 
activity. The USACE will also be gathering information to help better 
understand the impacts of their planned activities on species and their 
behavioral responses.

Visual Monitoring

    Monitoring would be conducted 30 minutes before, during, and 30 
minutes after all pile driving/removal activities. In addition, PSO 
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/removed. Pile driving/
removal activities include the time to install, remove a single pile or 
series of piles, as long as

[[Page 1150]]

the time elapsed between uses of the pile driving equipment is no more 
than thirty minutes.
    Monitoring will be conducted by PSOs from on land and boat. The 
number of PSOs will vary from one to three, depending on the type of 
pile driving, method of pile driving and size of pile, all of which 
determines the size of the harassment zones. Monitoring locations will 
be selected to provide an unobstructed view of all water within the 
shutdown zone and as much of the Level B harassment zone as possible 
for pile driving activities. During vibratory driving or removal of AZ-
sheets or H-piles, two PSOs will be present. One PSO will be located on 
the shoreline adjacent to the MOF site or on the barge used for driving 
piles. The other PSO will be boat-based and detect animals in the 
water, along with monitoring the three haulout sites in the Level B 
harassment zone (i.e., Pigeon Point, Clam Island/North Spit, and South 
Slough). During vibratory driving and removal of steel pipe piles (30-
in), three PSOs will be present. As indicated above, one PSO will be on 
the shoreline or barge adjacent to the MOF site. A second PSO will be 
stationed near the South Slough haul out site, and the third PSO will 
be boat-based and make observations while actively monitoring at and 
between the two remaining haulout sites (i.e., Pigeon Point and Clam 
Island).
    In addition, PSOs will work in shifts lasting no longer than 4 
hours with at least a 1-hour break between shifts, and will not perform 
duties as a PSO for more than 12 hours in a 24[hyphen]hour period (to 
reduce PSO fatigue).
    Monitoring of pile driving shall be conducted by qualified, NMFS-
approved PSOs, who shall have no other assigned tasks during monitoring 
periods. The USACE shall adhere to the following conditions when 
selecting PSOs:
    [ssquf] Independent PSOs shall be used (i.e., not construction 
personnel);
    [ssquf] At least one PSO must have prior experience working as a 
marine mammal observer during construction activities;
    [ssquf] Other PSOs may substitute education (degree in biological 
science or related field) or training for experience;
    [ssquf] Where a team of three or more PSOs are required, a lead 
observer or monitoring coordinator shall be designated. The lead 
observer must have prior experience working as a marine mammal observer 
during construction; and
    [ssquf] The USACE shall submit PSO CVs for approval by NMFS for all 
observers prior to monitoring. The USACE shall ensure that the PSOs 
have the following additional qualifications:
    [ssquf] 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;
    [ssquf] Experience and ability to conduct field observations and 
collect data according to assigned protocols;
    [ssquf] Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
    [ssquf] Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    [ssquf] Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior;
    [ssquf] 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; and
    [ssquf] Sufficient training, orientation, or experience with the 
construction operations to provide for personal safety during 
observations.

Reporting of Injured or Dead Marine Mammals

    In the unanticipated event that the planned activity clearly causes 
the take of a marine mammal in a manner prohibited by the IHA, such as 
serious injury, or mortality, the USACE must immediately cease the 
specified activities and report the incident to the NMFS Office of 
Protected Resources and the West Coast Region Stranding Coordinator. 
The report must include the following information:
    [ssquf] Time and date of the incident;
    [ssquf] Description of the incident;
    [ssquf] Environmental conditions (e.g., wind speed and direction, 
Beaufort sea state, cloud cover, and visibility);
    [ssquf] Description of all marine mammal observations and active 
sound source use in the 24 hours preceding the incident;
    [ssquf] Species identification or description of the animal(s) 
involved;
    [ssquf] Fate of the animal(s); and
    [ssquf] Photographs or video footage of the animal(s).
    Activities must not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with USACE to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The USACE may not 
resume their activities until notified by NMFS.
    In the event the USACE discovers an injured or dead marine mammal, 
and the lead observer 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), the USACE must immediately report the 
incident to the Office of Protected Resources, NMFS, and the West Coast 
Region Stranding Coordinator, NMFS. The report must include the same 
information as the bullets described above. Activities may continue 
while NMFS reviews the circumstances of the incident. NMFS will work 
with the USACE to determine whether additional mitigation measures or 
modifications to the activities are appropriate.
    In the event that the USACE discovers an injured or dead marine 
mammal, and the lead observer determines that the injury or death is 
not associated with or related to the specified activities (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the USACE must report the incident 
to the Office of Protected Resources, NMFS, and the West Coast Region 
Stranding Coordinator, NMFS, within 24 hours of the discovery.

Final Report

    The USACE shall submit a draft report to NMFS no later than 90 days 
following the end of construction activities or 60 days prior to the 
issuance of any subsequent IHA for the project. PSO datasheets/raw 
sightings data would be required to be submitted with the reports. The 
USACE shall provide a final report within 30 days following resolution 
of NMFS' comments on the draft report. Reports shall contain, at 
minimum, the following:
    [ssquf] Date and time that monitored activity begins and ends for 
each day conducted (monitoring period);
    [ssquf] Construction activities occurring during each daily 
observation period, including how many and what type of piles driven;
    [ssquf] Deviation from initial proposal in pile numbers, pile 
types, average driving times, etc.;
    [ssquf] Weather parameters in each monitoring period (e.g., wind 
speed, percent cloud cover, visibility);

[[Page 1151]]

    [ssquf] Water conditions in each monitoring period (e.g., sea 
state, tide state);
    [ssquf] For each marine mammal sighting:
    [cir] Species, numbers, and, if possible, sex and age class of 
marine mammals;
    [cir] Number of individuals of each species (differentiated by 
month as appropriate) detected within the monitoring zones, and 
estimates of number of marine mammals taken, by species (a correction 
factor may be applied to total take numbers, as appropriate);
    [cir] Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
    [cir] Type of construction activity that was taking place at the 
time of sighting;
    [cir] Location and distance from pile driving activities to marine 
mammals and distance from the marine mammals to the observation point;
    [cir] If shutdown was implemented, behavioral reactions noted and 
if they occurred before or after shutdown.
    [ssquf] Description of implementation of mitigation measures within 
each monitoring period (e.g., shutdown or delay);
    [ssquf] Other human activity in the area within each monitoring 
period;
    [ssquf] A summary of the following:
    [cir] Total number of individuals of each species detected within 
the Level B Harassment Zone, and estimated as taken if correction 
factor appropriate. Level B harassment takes must be extrapolated based 
upon the number of observed takes and the percentage of the Level B 
Harassment Zone that was not visible;
    [cir] Total number of individuals of each species detected within 
the Level A Harassment Zone and the average amount of time that they 
remained in that zone; and
    [cir] Daily average number of individuals of each species 
(differentiated by month as appropriate) detected within the Level B 
Harassment Zone, and estimated as taken, if appropriate.

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, the majority of our analyses applies to all 
the species listed in Table 8, given that many of the anticipated 
effects of this project on different marine mammal stocks are expected 
to be relatively similar in nature. For harbor seals, because there is 
thought to be a potential resident population and potential repeat 
takes of individuals, we provide a supplemental analysis independent of 
the other species for which we propose to authorize take. Also, because 
the both the number and nature of the estimated takes anticipated to 
occur are identical in years 1 and 2, the analysis below applies to 
each of the IHAs.
    The USACE did not request, and NMFS is not authorizing, take in the 
form of injury, serious injury, or mortality. The nature of the work 
precludes the likelihood of serious injury or mortality, and the 
mitigation is expected to ensure that no Level A harassment occurs. For 
all species and stocks, any take would occur within a limited, confined 
area of any given stock's home range (Coos Bay). Take would be limited 
to Level B harassment only. Exposure to noise resulting in Level B 
harassment for all species is expected to be temporary and minor due to 
the general lack of use of Coos Bay by cetaceans and pinnipeds, as 
explained above. In general, cetacean and non-harbor seal pinnipeds are 
infrequent visitors with only occasional sightings within Coos Bay. 
Cetaceans such as transient killer whales may wander into Coos Bay; 
however, any behavioral harassment occurring during the project is 
highly unlikely to impact the health or fitness of any individuals, 
much less effect annual rates of recruitment or survival, given any 
exposure would be very brief with any harassment potential from the 
project decreasing to zero once the animals leave the bay. There are no 
habitat areas of particular importance for cetaceans (e.g., 
biologically important area, critical habitat, primary foraging or 
calving habitat) within Coos Bay. Further, the amount of take 
authorized for any given stock is very small when compared to stock 
abundance, demonstrating that a very small percentage of the stock 
would be affected at all by the specified activity. Finally, while pile 
driving could occur year-round, pile driving would be intermittent (not 
occurring every day) and primarily limited to the MOF site, a very 
small portion of Coos Bay.
    For harbor seals, the impact of harassment on the stock as a whole 
is negligible given the stocks very large size (70,151 seals). However, 
we are aware that it is likely a resident population of harbor seals 
resides year round within Coos Bay. While this has not been 
scientifically investigated through research strategies such as 
tagging/mark-recapture techniques, anecdotal evidence suggests some 
seals call Coos Bay home year-round, as suggested through AECOM's 
winter surveys. The exact home range of this potential resident 
population is unknown but harbor seals, in general, tend to have 
limited home range sizes. Therefore, we can presume that some harbor 
seals will be repeatedly taken. Repeated, sequential exposure to pile 
driving noise over a longer duration could result in more severe 
impacts to individuals that could affect a population; however, the 
limited number of non-consecutive pile driving days for this project 
means that these types of impacts are not anticipated. Further, these 
animals are already exposed, and likely somewhat habituated, to 
industrial noises such as USACE maintenance dredging, commercial 
shipping and fishing vessel traffic (Coos Bay contains a major port), 
and coastal development.
    In summary, although this potential small resident population is 
likely to be taken repeatedly, the impacts of that take are negligible 
to the stock because the number of repeated days of exposure is small 
(14 or fewer) and non-consecutive, the affected individuals represent a 
very small subset of the stock that is already exposed to regular 
higher levels of anthropogenic stressors, injurious noise levels are 
not authorized, and the pile driving/

[[Page 1152]]

removal would not take place during the pupping season and during a 
time in which harbor seal density is greatest.
    The following factors primarily support our determination that the 
impacts resulting from each of these two years of activity are not 
expected to adversely affect the species or stock through effects on 
annual rates of recruitment or survival:
    [ssquf] No serious injury or mortality is anticipated or 
authorized;
    [ssquf] No Level A harassment is anticipated or authorized;
    [ssquf] The number and intensity of anticipated takes by Level B 
harassment is relatively low for all stocks;
    [ssquf] No biologically important areas have been identified for 
the effected species within Coos Bay;
    [ssquf] For all species, including the Oregon/Washington Coastal 
stock of harbor seals, Coos Bay is a very small part of their range; 
and
    [ssquf] No pile driving would occur during the harbor seal pupping 
season; therefore, no impacts to pups from this activity is likely to 
occur.
    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 planned monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
each of the two years of 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.
    The authorized take of seven marine mammal stocks comprises less 
than four percent of any stock abundance.
    Based on the analysis contained herein of the planned activity 
(including the planned mitigation and monitoring measures) and the 
anticipated take of marine mammals, for each planned IHA, 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, for both 
IHAs, 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 planned action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment. These actions are 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 these planned IHAs qualifies to be categorically 
excluded from further NEPA review.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. No take of ESA-listed marine mammals are authorized. 
Therefore, NMFS has determined that consultation under section 7 of the 
ESA is not required for this action.

Authorizations

    As a result of these determinations, NMFS authorizes two IHAs to 
the USACE for pile driving and removal activities associated with the 
North Jetty maintenance and repairs project in Coos Bay, Oregon over 
the course of two non-consecutive years, beginning September 2020 
through June 2023, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: January 3, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-00122 Filed 1-8-20; 8:45 am]
 BILLING CODE 3510-22-P