[Federal Register Volume 87, Number 102 (Thursday, May 26, 2022)]
[Notices]
[Pages 31985-32001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11280]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB985]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Pier 58 Reconstruction and Pier 63 
Removal Projects in Seattle, Washington

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

ACTION: Notice; issuance of incidental harassment authorizations 
(IHAs).

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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 two IHAs to the City of Seattle (City) to 
incidentally harass marine mammals during in-water construction 
activities associated with the Pier 58 Reconstruction Project and Pier 
63 Removal Project in Seattle, Washington.

DATES: Both IHAs are valid from August 1, 2022 through July 31, 2023.

FOR FURTHER INFORMATION CONTACT: Amy Fowler, 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/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems 
accessing these documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are proposed or, if the taking is limited to harassment, a notice of a 
proposed IHA is 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 the 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 the 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 July 21, 2021, NMFS received two requests from the City for an 
IHA to take marine mammals incidental to the Pier 63 Removal Project 
and, separately, the Pier 58 Reconstruction Project on the waterfront 
in downtown Seattle,

[[Page 31986]]

Washington. The City submitted revised applications for each project on 
September 29, 2021 and January 3, 2022. Both applications were deemed 
adequate and complete on January 26, 2022. The City's request is for 
take of a small number of 11 species of marine mammals, by Level B 
harassment only for the Pier 63 Removal Project, and by Level A 
harassment and Level B harassment for the Pier 58 Reconstruction 
Project. Neither the City nor NMFS expects serious injury or mortality 
to result from these activities and, therefore, IHAs are appropriate.

Description of Planned Activity

Overview

    The City submitted an individual IHA application for each project. 
However, given the City applied for both projects concurrently, the 
projects' close proximity to each other, and similarities in the 
planned activities and potential impacts on marine mammals, NMFS is 
using this single Federal Register notice to announce the issuance of 
the two similar, but separate, IHAs.
    The City plans to reconstruct Waterfront Park along the Elliott Bay 
shoreline in Seattle, Washington. When replaced, Waterfront Park will 
be renamed Pier 58 in reference to the original structure and to avoid 
confusion with the larger waterfront park promenade that will be 
reconstructed along Alaskan Way. The project includes vibratory removal 
of existing in-water piles and vibratory and impact installation of new 
piles to support the expanded overwater structure (Table 1). A total of 
31 existing steel H-piles and timber piles will be removed in whole, 
wherever possible, by pulling the piles using a vibratory extraction 
method or clamshell bucket. Once all existing piles have been removed, 
the City will begin the reconstruction by using a vibratory hammer to 
install 100 24-inch steel pipe template piles, which will all 
subsequently be removed using the same vibratory hammer. The City will 
then install a total of 120 permanent 30-inch steel pipe piles using a 
vibratory hammer, followed by an impact hammer to ``proof'' the pilings 
to their maximum depth and load-bearing capacity. The City does not 
plan to conduct pile driving with multiple hammers concurrently. 
Funding for this project has been secured and the City expects Pier 58 
reconstruction (including above-water construction that does not have 
the potential to take marine mammals) to take a little over a year to 
complete, from August 2022 to December 2023, with a total of 70 days of 
in-water work expected during the designated window.

                                            Table 1--Summary of Piles To Be Installed and Removed at Pier 58
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                                                                                                                                           Maximum  days
          Pile type and size                            Method                    Number of     Maximum piles   Duration or  strikes per      of pile
                                                                                    piles          per day                pile                driving
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Steel H-pile, 14-inch timber pile.....  Vibratory removal....................              31              20  20 minutes...............              10
24-inch steel pipe pile...............  Vibratory installation...............         \a\ 100              10  15 minutes...............              10
24-inch steel pipe pile...............  Vibratory removal....................         \a\ 100              10  5 minutes................              10
30-inch steel pipe pile...............  Vibratory installation...............         \b\ 120               4  45 minutes...............          \c\ 40
30-inch steel pipe pile...............  Impact installation..................         \c\ 120               3  400 strikes..............          \a\ 40
                                                                              --------------------------------------------------------------------------
    Total.............................  Vibratory and impact.................             251  ..............  .........................              70
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\a\ These same 100 piles will be installed and later removed.
\b\ These same 120 piles will be installed first using a vibratory hammer, than finished with an impact hammer.
\c\ Vibratory and impact installation of 30-inch piles will occur on the same 40 days.

    The City also plans to remove Pier 63 from the downtown Seattle 
waterfront. The structural integrity of the pier has deteriorated and 
the pier has been closed to the public for safety. Removing Pier 63 
will leave the nearshore environment open for improved ecosystem 
function and salmonid migration. The project includes vibratory removal 
of existing in-water piles; no plans have been made to reconstruct Pier 
63, therefore no new piles will be installed (Table 1). The City plans 
to demolish and remove the existing pier (with a total over-water area 
of 35,108 square feet), including removal of 900 14-inch timber piles 
and 8 30-inch steel pipe piles. Pier 63 will be removed during one in-
water work season, with a total of 47 days of in-water work expected. 
If funding for Pier 63 removal is not authorized to allow the planned 
work to occur during the effective dates of the IHA (August 1, 2022 
through July 31, 2023), the City will request the IHA be reissued for 
the following year, as discussed in the Federal Register notice of the 
proposed IHAs (87 FR 12089; March 3, 2022). Due to this possibility, 
the analysis that follows for the Pier 63 Removal Project considers 
possible effects on marine mammals during either the August 2022 
through July 2023 period or the August 2023 through July 2024 period, 
based on the current best available science.

                               Table 2--Summary of Piles To Be Removed at Pier 63
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                                                                   Maximum piles   Duration  per   Maximum  days
                    Pile type                        Number of     removed  per        pile           of pile
                                                       piles            day          (minutes)        removal
----------------------------------------------------------------------------------------------------------------
14-inch timber pile.............................             900              20              20              45
30-inch steel pipe pile.........................               8               4              45               2
----------------------------------------------------------------------------------------------------------------

    A detailed description of the planned activities is provided in the 
Federal Register notice of the proposed IHAs (87 FR 12089; March 3, 
2022). Since that time, no changes have been made to the planned 
activities. Therefore, a detailed description is not provided here. 
Please refer to that Federal Register notice for descriptions of the 
specific activities. Mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Mitigation and 
Monitoring and Reporting sections).

[[Page 31987]]

Comments and Responses

    A notice of NMFS's proposal to issue two IHAs to the City was 
published in the Federal Register on March 3, 2022 (87 FR 12089). That 
notice described, in detail, the City's activities, the marine mammal 
species that may be affected by the activities, and the anticipated 
effects on marine mammals. In that notice, we requested public input on 
the request for authorization described therein, our analyses, the 
proposed authorization, and any other aspect of the notice of proposed 
IHA, and requested that interested persons submit relevant information, 
suggestions, and comments. This proposed notice was available for a 30-
day public comment period. During the public comment period, NMFS 
received no public comments.

Changes From the Proposed IHA to Final IHA

    On March 28, 2022, after NMFS published the notice of proposed 
IHAs, the City submitted a letter to NMFS, withdrawing their request 
for take of Southern Resident killer whales (SRKW; Orcinus orca) and 
humpback whales (Megaptera novaeangliae). The City explained that it 
had initially included the request for incidental take coverage of SRKW 
in their IHA applications as a conservative approach, but had since 
reconsidered the expected effectiveness of proposed mitigation and 
monitoring measures. The City reviewed monitoring results from past 
projects along the Seattle Waterfront and the sightings reports of SRKW 
and humpback whales compiled by Orca Network. The City also proposed to 
increase its mitigation efforts to ensure that any SRKW or humpback 
whales in the general area of the projects would be immediately 
detected. In addition, the proposed mitigation measure to implement 
shutdown measures for SRKW has been expanded to apply also to humpback 
whales, such that if any humpback whale is sighted within the vicinity 
of the project areas and is approaching the Level B harassment zone, 
the City would shut down the pile driving equipment to avoid possible 
take. With this new information and additional mitigation, in 
conjunction with the previously proposed mitigation and monitoring, the 
City determined, and NMFS concurs, that incidental take of these two 
stocks is unlikely to occur.
    Monitoring results from recent similar in-water construction 
projects with similar Level B harassment zones, such as the City's Pier 
62 Restoration Project (Anchor QEA 2019) indicate that protected 
species observers (PSOs) were able to detect SRKW and humpback whales 
outside the Level B harassment zone. In the City's Pier 62 Restoration 
IHA (83 FR 39709; August 10, 2018), SRKW and humpback whales were first 
observed when outside of the Level B harassment zone. But because 
incidental take was authorized, the pile driving equipment was not 
required to be shut down when these species were detected. If shutdown 
for the Level B harassment zone had been included in that IHA, the City 
would have been able to cease pile driving and avoid all take of SRKW 
and humpback whales. Similarly, IHAs issued to the Washington State 
Department of Transportation (WSDOT) for in-water pile driving 
activities at the Seattle Ferry Terminal (Pier 52) since 2017 have 
authorized incidental take of humpback whales, but have included the 
requirement to shut down pile driving equipment prior to SRKW entering 
the Level B harassment zone (e.g., 86 FR 38686; July 22, 2021). Over 
the course of 5 in-water work seasons, WSDOT has recorded observations 
of SRKW in the project area but has successfully implemented the 
required mitigation measure and reported no take of SRKW (WSDOT 2022).
    PSOs for the Pier 58 Reconstruction and Pier 63 Removal projects 
will be stationed with views that extend beyond the Level B harassment 
zone, providing an opportunity for PSOs to detect SRKW and humpback 
whales outside of the Level B harassment zone and notify the contractor 
to cease pile driving activities before Level B harassment occurs. PSOs 
will also notify the contractor to delay the start of pile driving if 
these species are present. During emergency in-water demolition work at 
Waterfront Park between October 2020 and February 2021, PSOs were 
stationed at the same locations as those designated for the Pier 58 
Reconstruction and Pier 63 Removal projects. The PSOs observed SRKW 
outside the Level B harassment zone (equivalent to the largest Level B 
harassment zone for the two Pier 58 and Pier 63 IHAs; see Estimated 
Take section) and were able to coordinate with the contractor to halt 
pile driving in advance of SRKW entering the harassment zone (Anchor 
QEA, 2021). Observations of that same group of SRKW were also reported 
by Orca Network as the pod traveled through Puget Sound.
    Contacting, it is most likely that any occurrence of SRKW or 
humpback whales in Central Puget Sound will be reported to and 
distributed by Orca Network, and these reports will then be obtained by 
the PSOs employed for both projects (see below for the required 
frequency of PSOs obtaining reports from Orca Network) before the 
animals are within the Level B harassment zones for the Pier 58 and 
Pier 63 projects.
    To obtain more real-time sightings reports of SRKW and humpback 
whales to even further increase the likelihood that both species will 
be detected before they enter the Level B harassment zone, the City 
proposed increasing the frequency that PSOs will contact Orca Network 
from what was included in the proposed IHAs (87 FR 12089; March 3, 
2022). The proposed IHAs included requirements for PSOs to contact Orca 
Network to obtain sightings reports of marine mammals in central Puget 
Sound twice each day, once prior to the start of in-water work for the 
day, and again at the approximate mid-point of construction each day. 
The City amended this process such that PSOs will now contact Orca 
Network hourly, which will increase the likelihood that PSOs will be 
aware of reported sightings of SRKW and humpback whales in central 
Puget Sound, and be able to detect these species outside the Level B 
harassment zone and initiate equipment shutdowns to prevent take from 
occurring.
    NMFS has reviewed the new information, in addition to considering 
the effect of the updated mitigation measures of requiring shutdown if 
humpback whales are sighted within the vicinity of the project areas 
and approaching the Level B harassment zone as well as requiring PSOs 
to contact Orca Network hourly for the most recent location information 
of SRKW and humpback whales. Although NMFS previously accepted that it 
was possible for a small number of SRKW to enter the Level B harassment 
zone undetected and proposed a small amount of Level B harassment for 
both SRKW and humpback whales, NMFS now concurs with the City's 
assessment that any take of SRKW and humpback whales is unlikely to 
occur, and has incorporated the new mitigation measures into the final 
IHAs. Accordingly, the final IHAs do not authorize incidental take of 
SRKW or humpback whales.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the City's applications summarize available 
information regarding status and trends, distribution and habitat 
preferences, and behavior and life history of the potentially affected 
species. NMFS fully considered all of this information, and we refer 
the reader to these descriptions, incorporated here by reference, 
instead of reprinting the information. Additional information regarding

[[Page 31988]]

population trends and threats may be found in NMFS' Stock Assessment 
Reports (SARs; 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' website (https://www.fisheries.noaa.gov/find-species).
    Table 3 lists all species or stocks for which take is expected and 
authorized for the City's activities, and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and Endangered Species Act (ESA) and potential biological 
removal (PBR), where known. PBR is defined by the MMPA as the maximum 
number of animals, not including natural mortalities, that may be 
removed from a marine mammal stock while allowing that stock to reach 
or maintain its optimum sustainable population (as described in NMFS' 
SARs). While no serious injury or mortality is anticipated or 
authorized here, PBR and annual serious injury and mortality from 
anthropogenic sources are included here as gross indicators of the 
status of the species and other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All values for each managed stock presented in 
Table 3 are the most recent available at the time of publication and 
are available in the 2020 SARs (Carretta et al., 2021, Muto et al., 
2021) and draft 2021 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                              Table 3--Marine Mammals That Could Occur in the Project Area
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                                                                                         ESA/ MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic  (Y/       Nmin, most recent       PBR     Annual  M/
                                                                                               N)\1\         abundance survey) \2\               SI \3\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae:
    Gray whale......................  Eschrichtius robustus..  Eastern N Pacific......  -, -, N             26,960 (0.05, 25,849,         801        131
                                                                                                             2016).
Family Balaenopteridae (rorquals):
    Minke whale.....................  Balaenoptera             California/Oregon/       -, -, N             915 (0.792, 509, 2018)        4.1     >=0.59
                                       acutorostrata.           Washington.
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
    Long Beaked Common Dolphin......  Delphinus capensis.....  California.............  -, -, N             83,379 (0.216, 69,636,        668     >=29.7
                                                                                                             2018).
    Bottlenose Dolphin..............  Tursiops truncatus.....  California Coastal.....  -, -, N             453 (0.06, 346, 2011).        2.7      >=2.0
    Killer Whale....................  Orcinus orca...........  West Coast Transient...  -, -, N             \4\ 349 (N/A, 349,            3.5        0.4
                                                                                                             2018).
Family Phocoenidae (porpoises):
    Harbor Porpoise.................  Phocoena phocoena......  Washington Inland        -, -, N             11,233 (0.37, 8,308,           66      >=7.2
                                                                Waters.                                      2015).
    Dall's Porpoise.................  Phocoenoides dalli.....  California/Oregon/       -, -, N             16,498 (0.61, 10,286,          99     >=0.66
                                                                Washington.                                  2019).
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    California Sea Lion.............  Zalophus californianus.  U.S....................  -, -, N             257,606 (N/A,233,515,      14,011       >320
                                                                                                             2014).
    Steller Sea Lion................  Eumetopias jubatus.....  Eastern................  -, -, N             \5\ 43,201 (see SAR,        2,592        112
                                                                                                             43,201, 2017).
Family Phocidae (earless seals):
    Harbor Seal.....................  Phoca vitulina.........  Washington Northern      -, -, N             \6\ 11,036 (UNK, UNK,         UND        9.8
                                                                Inland Waters.                               1999).
    Northern Elephant Seal..........  Mirounga angustirostris  California Breeding....  -, -, N             187,386 (N/A, 85,369,       5,122       13.7
                                                                                                             2013).
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\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
  designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
  which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
  automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a
  minimum value or range.
\4\ Based on counts of individual animals identified from photo-identification catalogues. Surveys for abundance estimates of these stocks are conducted
  infrequently.
\5\ Best estimate of pup and non-pup counts, which have not been corrected to account for animals at sea during abundance surveys.
\6\ The abundance estimate for this stock is greater than eight years old and is therefore not considered current. PBR is considered undetermined for
  this stock, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as
  these represent the best available information for use in this document.

    As indicated above, all 11 species (with 11 managed stocks) in 
Table 3 temporally and spatially co-occur with the activities to the 
degree that take is reasonably likely to occur. The Pacific white-sided 
dolphin (Lagenorhynchus obliquidens) is a rare visitor to the inland 
waters of Puget Sound (Orca Network, 2021). However, they have not been 
observed during recent marine mammal monitoring for projects in Elliott 
Bay (e.g., WSDOT 2021; Anchor QEA 2019) and are considered unlikely to 
occur in the area during the City's planned activities. The City has 
not requested take of Pacific white-sided dolphins for either project 
and NMFS does not anticipate or authorize take of

[[Page 31989]]

this species. Therefore, Pacific white-sided dolphins are not discussed 
further in this document. Additionally, as described above in the 
Changes from the Proposed IHA to Final IHA section of this notice, SRKW 
and humpback whales also occur in the inland waters of Puget Sound and 
take of these species was included in the proposed IHAs (87 FR 12089; 
March 3, 2022). However, in consideration of the City's amended request 
and the requirements described in the Mitigation and Monitoring and 
Reporting sections of this notice, NMFS has determined that take of 
these species is unlikely to occur and has not authorized take of SRKW 
and humpback whales.
    A detailed description of the species likely to be affected by the 
City's activities, including information regarding population trends 
and threats, and information regarding local occurrence, were provided 
in the Federal Register notice for the proposed IHAs (87 FR 12089; 
March 3, 2022). Since that time, we are not aware of any changes in 
this information or the status of these species and stocks; therefore, 
detailed descriptions are not provided here. Please refer to that 
Federal Register notice for those descriptions. Please also refer to 
NMFS's website (https://www.fisheries.noaa.gov/find-species) for 
generalized species accounts.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect 
this, Southall et al. (2007) recommended that marine mammals be divided 
into functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 4.

                  Table 4--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchids, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinnipeds (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from the City's construction 
activities have the potential to result in Level A and Level B 
harassment of marine mammals in the vicinity of the project area. The 
notice of proposed IHAs (87 FR 12089; March 3, 2022) included a 
discussion of the effects of anthropogenic noise on marine mammals and 
the potential effects of underwater noise from the City's construction 
activities on marine mammals and their habitat. That information and 
analysis is incorporated by reference into the final determinations for 
the IHAs and is not repeated here; please refer to the notice of 
proposed IHAs (87 FR 12089; March 3, 2022).
    The Estimated Take section includes a quantitative analysis of the 
number of individuals that are expected to be taken by this activity. 
The Negligible Impact Analysis and Determination section considers the 
content of this section, the Estimated Take section, and the Mitigation 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship of individuals 
and whether those impacts are reasonably expected to, or reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival.

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 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).
    Authorized takes are primarily by Level B harassment (in the form 
of

[[Page 31990]]

behavioral disturbance and temporary threshold shift (TTS)), as use of 
the acoustic sources (i.e., vibratory or impact pile driving and 
removal) have the potential to result in disruption of behavioral 
patterns and cause a temporary loss in hearing sensitivity for 
individual marine mammals. There is also some potential for auditory 
injury (Level A harassment) to result for porpoises and harbor seals 
because predicted auditory injury zones are larger than for other 
hearing groups. The required mitigation and monitoring measures are 
expected to minimize the severity of the taking to the extent 
practicable.
    As described previously, no serious injury or mortality is 
anticipated or authorized for this activity. Below we describe how the 
authorized take numbers are estimated.
    For acoustic impacts, 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) the number of days of activities. We note 
that while these factors can contribute to a basic calculation to 
provide an initial prediction of potential 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.

Acoustic Thresholds

    NMFS recommends the use of 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 permanent threshold shift (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 or exposure context (e.g., frequency, predictability, duty 
cycle, duration of the exposure, signal-to-noise ratio, distance to the 
source), the environment (e.g., bathymetry, other noises in the area, 
predators in the area), and the receiving animals (hearing, motivation, 
experience, demography, life stage, depth) and can be difficult to 
predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012). 
Based on what the available science indicates and the practical need to 
use a threshold based on a metric that is both predictable and 
measurable for most activities, NMFS typically uses a generalized 
acoustic threshold based on received level to estimate the onset of 
behavioral harassment. NMFS generally predicts that marine mammals are 
likely to be behaviorally harassed in a manner considered to be Level B 
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (referenced 
to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile-
driving, drilling) and above RMS SPL of 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources. This take estimation includes disruption of 
behavioral patterns resulting directly in response to noise exposure 
(e.g., avoidance), as well as that resulting indirectly from associated 
impacts such as TTS or masking.
    The City's planned activities include the use of continuous 
(vibratory hammer) and impulsive (impact hammer) sources, and therefore 
the 120 and 160 dB re 1 [mu]Pa (rms) thresholds are 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 from 
two different types of sources (impulsive or non-impulsive). The City's 
activities include the use of impulsive (impact hammer) and non-
impulsive (vibratory hammer) sources.
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 5--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                         PTS onset thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: L,0-pk,flat: 219    Cell 2: LE,, LF,24h: 199 dB.
                                          dB; LE, LF,24h: 1183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: L, 0-pk,flat: 230   Cell 4: LE,, MF,24h: 198 dB.
                                          dB; LE,,MF,24h: 1185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: L, 0-pk,flat: 202   Cell 6: LE,, HF,24h: 173 dB.
                                          dB; LE,,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: L, 0-pk.flat: 218   Cell 8: LE,,PW,24h: 201 dB.
                                          dB; LE,,PW,24h: 1185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: L,0-pk,flat: 232    Cell 10: LE,,OW,24h: 219 dB.
                                          dB; LE,,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS
  onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
  associated with impulsive sounds, these thresholds are recommended for consideration.

[[Page 31991]]

 
Note: Peak sound pressure level (L,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
  exposure level (LE,) has a reference value of 1[micro]Pa \2\s. In this Table, thresholds are abbreviated to be
  more reflective of International Organization for Standardization standards (ISO 2017). The subscript ``flat''
  is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized
  hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative sound
  exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF
  cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted
  cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure
  levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the
  conditions under which these thresholds will be exceeded.

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that are used in estimating the area ensonified above the 
acoustic thresholds, including source levels and transmission loss 
coefficient.
    The sound field in the project areas is the existing background 
noise plus additional construction noise from the planned projects. 
Marine mammals are expected to be affected by sound generated by the 
primary components of the project (i.e., impact and vibratory pile 
driving).
    In order to calculate distances to the Level A harassment and Level 
B harassment thresholds for the methods and piles being used in this 
project, NMFS used acoustic monitoring data from other locations to 
develop source levels for the various pile types, sizes, and methods 
for the two piers (Tables 6 and 7).

                                  Table 6--Pier 58 Project Sound Source Levels
----------------------------------------------------------------------------------------------------------------
                                                                 Source level  (dB re 1
       Pile type and size  (in)                 Method                  [mu]Pa)                 Reference
----------------------------------------------------------------------------------------------------------------
14-in timber, steel H-piles..........  Vibratory removal......  152 dB rms.............  Greenbusch Group
                                                                                          (2018).
24-in steel pipe pile................  Vibratory removal and    163 dB rms.............  Greenbusch Group
                                        installation.                                     (2019).
30-in steel pipe pile................  Vibratory installation.  163 dB rms.............  Greenbusch Group
                                                                                          (2019).
30-in steel pipe pile................  Impact installation....  180 dB rms \1\, 193 dB   Greenbusch Group
                                                                 peak.                    (2019).
----------------------------------------------------------------------------------------------------------------
\1\ Highest RMS sound level from bubble curtain attenuated impact driving of 30-in steel piles at Pier 62.


                                  Table 7--Pier 63 Project Sound Source Levels
----------------------------------------------------------------------------------------------------------------
                                                                 Source level  (dB re 1
       Pile type and size  (in)                 Method                  [mu]Pa)                 Reference
----------------------------------------------------------------------------------------------------------------
14-in timber.........................  Vibratory removal......  152 dB rms.............  Greenbusch Group
                                                                                          (2018).
30-in steel pipe pile................  Vibratory removal......  163 dB rms.............  Greenbusch Group
                                                                                          (2019).
----------------------------------------------------------------------------------------------------------------

Level B Harassment Zones

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

TL = B * Log10 (R1/R2),

Where:

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

    The recommended TL coefficient for most nearshore environments is 
the practical spreading value of 15. This value results in an expected 
propagation environment that would lie between spherical and 
cylindrical spreading loss conditions, which is the most appropriate 
assumption for the City's planned activities in the absence of specific 
modelling. The Level B harassment zones for the City's planned 
activities are shown in Tables 8 and 9.

Level A Harassment Zones

    The ensonified area associated with Level A harassment is more 
technically challenging to predict due to the need to account for a 
duration component. Therefore, NMFS developed an optional User 
Spreadsheet tool to accompany the Technical Guidance that can be used 
to relatively simply predict an isopleth distance for use in 
conjunction with marine mammal density or occurrence to help predict 
potential takes. We note that because of some of the assumptions 
included in the methods underlying this optional tool, we anticipate 
that the resulting isopleth estimates are typically going to be 
overestimates of some degree, which may result in an overestimate of 
potential take by Level A harassment. However, this optional tool 
offers the best way to estimate isopleth distances when more 
sophisticated modeling methods are not available or practical. For 
stationary sources such as pile installation and removal, the NMFS User 
Spreadsheet predicts the distance at which, if a marine mammal remained 
at that distance for the whole duration of the activity, it would incur 
PTS. The isopleths generated by the User Spreadsheet used the same TL 
coefficient as the Level B harassment zone calculations (i.e., the 
practical spreading value of 15). Inputs used in the User Spreadsheet 
(e.g., number of piles per day, duration and/or strikes per pile) are 
presented in Tables 1 and 2, and the resulting isopleths are reported 
below in Tables 8 and 9. The areas expected to be ensonified above the 
Level B harassment threshold(s) are also presented in Tables 8 and 9. 
Due to the bathymetry and geography of the project areas, sound will 
not reach the full distance of the harassment isopleths in all 
directions.

[[Page 31992]]



                                            Table 8--Pier 58 Level A Harassment and Level B Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Level A harassment zone (m)                         Level B         Level B
                      Pile type                       -------------------------------------------------------------------   harassment      ensonified
                                                       LF cetacean   MF cetacean   HF cetacean    Phocids      Otariids      zone (m)      area (km \2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Timber and steel H-pile removal......................          6.1           0.5           9.0          3.7          0.3       \b\ 1,359            2.35
24-in steel vibratory install and removal, 30-in              19.3           1.7          28.6         11.7          0.8       \b\ 7,357           34.34
 steel vibratory install \a\.........................
30-in steel impact install...........................        153.3           5.5         182.6         82.0          6.0         \c\ 215            0.07
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Level A harassment zones for vibratory installation and removal of steel piles calculated using the highest total duration of driving (installation
  of 30-inch piles) and conservatively applied to all vibratory pile driving.
\b\ Distance to 120 dB rms threshold.
\c\ Distance to 160 dB rms threshold.


                                            Table 9--Pier 63 Level A Harassment and Level B Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Level A harassment zone (m)                         Level B         Level B
                      Pile type                       -------------------------------------------------------------------   harassment      ensonified
                                                       LF cetacean   MF cetacean   HF cetacean    Phocids      Otariids    zone (m) \a\    area (km \2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Timber...............................................          6.1           0.5           9.0          3.7          0.3           1,359            2.35
Steel................................................         19.3           1.7          28.6         11.7          0.8           7,357           34.34
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Distance to 120 dB rms threshold.

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 
authorized take incidental to the City's pile driving activities. 
Unless otherwise specified, the term ``pile driving'' in this section, 
and all following sections, may refer to either pile installation or 
removal.
    As described in the Changes from the Proposed IHA to Final IHA 
section of this notice, while take of SRKW and humpback whales was 
included in the proposed IHAs, the City has reassessed the likelihood 
of take of these species in consideration of the effectiveness of the 
required mitigation and monitoring measures. The City determined that 
by implementing the additional mitigation and monitoring requirements, 
take of SRKW and humpback whales is unlikely to occur. NMFS has 
carefully considered the new information and additional mitigation 
measures, and concurs with the City's assessment. Incidental take of 
SRKW and humpback whales is no longer anticipated to occur and has not 
been authorized.
    To estimate the number of marine mammals that may be taken 
incidental to the Pier 58 Reconstruction and Pier 63 Removal projects, 
the City considered using the ensonified area (see Tables 8 and 9) and 
density estimates from the U.S. Navy's Marine Species Density Database 
for the Northwest Training and Testing Study Area (U.S. Navy, 2019) but 
did not consider the resulting take estimates to be realistic (i.e., 
they either over- or underestimated take). Instead of using the U.S. 
Navy's density estimates, the City therefore compiled monitoring 
results from recent construction projects in Elliott Bay (e.g., WSDOT, 
2019; Anchor QEA, 2021) to estimate the likely daily or monthly 
occurrence of each species in the project areas. Unless otherwise 
specified, the occurrence information described below is used to 
estimate take for both the Pier 58 and Pier 63 projects. NMFS has 
carefully reviewed the City's analysis and concludes that it represents 
an appropriate and accurate method for estimating incidental take 
caused by the City's activities.
Gray Whale
    Gray whales are infrequent visitors to the project areas but are 
most commonly seen during the winter months. Although no observations 
of gray whales have been reported during recent pile driving projects 
along the Seattle waterfront (e.g., WSDOT 2021; Anchor QEA 2019), 
individual gray whales have been reported in Elliott Bay by WSDOT ferry 
operators in December 2018, January 2019, and November 2019. Therefore, 
the City estimates that one gray whale may be taken by Level B 
harassment in each winter month (November, December, January, and 
February) of the work window. Therefore, the City requested, and NMFS 
has authorized, 4 takes of gray whales by Level B harassment from Pier 
58 reconstruction. Since Pier 63 removal is expected to take only 3 
months total, the City requested, and NMFS has authorized, 3 takes of 
gray whales by Level B harassment from Pier 63 removal.
    Since the City must comply with all mitigation and monitoring 
measures, including marine mammal monitoring and coordination with Orca 
Network, these measures will likely be successful in detecting gray 
whales given their size and visibility, the City must stop work before 
gray whales could enter the small Level A harassment zones (up to 153.3 
m), and gray whales are infrequent visitors to the project areas, it is 
unlikely that any gray whales will be taken by Level A harassment. No 
take of gray whales by Level A harassment is requested or authorized.
Minke Whale
    Minke whales are rarely observed in the project areas and none have 
been reported during monitoring for recent pile driving activities in 
the area (e.g., WSDOT 2021; Anchor QEA 2019). The City estimates that 
no more than one minke whale per month may be taken by Level B 
harassment. Therefore, the City requested, and NMFS has authorized, 6 
takes of minke whales by Level B harassment from Pier 58 reconstruction 
and 3 takes by Level B harassment from Pier 63 removal.
    Like gray whales, minke whales are considered infrequent visitors 
to the project areas. As with gray whales, PSOs must coordinate with 
Orca Network and will likely be alerted to the presence of minke whales 
in the area, allowing the City to shut down pile driving equipment 
before a minke whale could enter the Level A harassment zones. Hence, 
in consideration of the expected

[[Page 31993]]

effectiveness of mitigation and infrequent occurrence, no take of minke 
whales by Level A harassment is requested or authorized.
Transient Killer Whale
    Transient killer whales are frequently seen in central Puget Sound 
and occasionally within Elliott Bay (Orca Network 2021). Transient 
killer whales typically travel in small groups. The City estimates that 
a group of 6 transient killer whales may enter the Level B harassment 
zone per month. Therefore, the City has requested, and NMFS has 
authorized, take of 36 transient killer whales by Level B harassment 
from Pier 58 reconstruction and 18 takes by Level B harassment from 
Pier 63 removal.
    The Level A harassment zones for mid-frequency cetaceans are all 
less than 10 m. PSOs must coordinate with Orca Network and will likely 
be alerted to the presence of transient killer whales in the area, 
allowing them to detect the animals and the City to cease pile driving 
well before killer whales could enter the Level A harassment zone. No 
take of transient killer whales by Level A harassment is requested or 
authorized.
Bottlenose Dolphin
    In 2017 the Orca Network (2017) reported sightings of a bottlenose 
dolphin in Puget Sound and in Elliott Bay, and WSDOT observed two 
bottlenose dolphins in one week during monitoring for the Colman Dock 
Multimodal Project (WSDOT 2018). In addition, a group of 7 bottlenose 
dolphins were observed in 2017 and were positively identified as part 
of the California coastal stock (Cascadia Research Collective, 2017). 
Bottlenose dolphins typically travel in groups of 2 to 15 in coastal 
waters (Carretta et al., 2020). The City estimates that 7 bottlenose 
dolphins may be taken by Level B harassment per month. Therefore, the 
City has requested, and NMFS has authorized, take of 42 bottlenose 
dolphins by Level B harassment from Pier 58 reconstruction and 21 takes 
by Level B harassment from Pier 63 removal.
    The Level A harassment zones for mid-frequency cetaceans are all 
less than 10 m. Given the visibility of bottlenose dolphins, the City 
will be able to cease pile driving before bottlenose dolphins could 
enter the Level A harassment zone. No take of bottlenose dolphins by 
Level A harassment is requested or authorized.
Long-Beaked Common Dolphin
    In June 2011, two long-beaked common dolphins were sighted in South 
Puget Sound. Sightings continued in 2012, and in 2016-17 (Carretta et 
al., 2018). Sightings of 4 to 12 individuals were reported regularly, 
with confirmed sightings of up to 30 individuals. In 2016, the Orca 
Network (2016) reported a pod of up to 20 long-beaked common dolphins. 
During monitoring for the Colman Dock Project in 2017-2018, 2 long-
beaked common dolphins were observed in smaller Level B harassment 
zones than estimated for pile driving at Piers 58 and 63 (WSDOT, 2018). 
The average reported group size of long-beaked common dolphins in Puget 
Sound is 7 individuals. Therefore, the City estimates 7 long-beaked 
common dolphins may be taken by Level B harassment per month. The City 
requested, and NMFS has authorized, take of 42 long-beaked common 
dolphins by Level B harassment from Pier 58 reconstruction and 21 takes 
by Level B harassment from Pier 63 removal.
    The Level A harassment zones for mid-frequency cetaceans are all 
less than 10 m. Given the visibility of long-beaked common dolphins, 
the City will be able to cease pile driving before long-beaked common 
dolphins could enter the Level A harassment zone. No take of long-
beaked common dolphins by Level A harassment is requested or 
authorized.
Harbor Porpoise
    Recent monitoring data from the Colman Dock Project (Pier 52) in 
2017 and 2018 (WSDOT 2019) included observations of 288 harbor 
porpoises over 99 days of monitoring activity. This equates to 
approximately 3 porpoises per day.
    To account for unobserved animals at the outer extent of the Level 
B harassment zones, the City estimates up to 6 harbor porpoises may 
enter the Level B harassment zone per day of pile driving at Pier 58 
(70 days) for a total of 420 harbor porpoises. For impact installation 
of steel piles at Pier 58, the Level A harassment zone for high-
frequency cetaceans is 183 m. Although the City must implement a 
shutdown zone of 185 m during this activity (see Mitigation section), 
due to the cryptic nature and lower detectability of harbor porpoises 
at large distances, the City anticipates that up to 12 of the harbor 
porpoises (2 per month) that enter the Level B harassment zone could 
approach the project site closer and potentially enter the Level A 
harassment zone undetected during impact installation at Pier 58, which 
could occur as one group in one day or single animals over two days. 
These harbor porpoises would be counted as taken by Level A harassment, 
but would not count toward the City's authorized number of takes of 
harbor porpoises by Level B harassment because they would have already 
been counted as Level A harassment takes. The Level A harassment zones 
for all vibratory pile driving at Pier 58 are all under 30 m. At that 
distance, the PSOs will be able to detect harbor porpoises and alert 
the City to cease pile driving activities before harbor porpoises could 
enter the Level A harassment zone. Therefore, no take of harbor 
porpoises by Level A harassment is anticipated from vibratory pile 
driving. In total, the City has requested, and NMFS has authorized, 
take of 420 harbor porpoises, 408 takes by Level B harassment and 12 
takes by Level A harassment from Pier 58 reconstruction.
    On all but two days of work at Pier 63, the Level B harassment zone 
will be well within Elliott Bay. Since the extent of the Level B 
harassment zone for this project on most days is less than for Pier 58, 
the City estimates that up to 5 harbor porpoises may be taken by Level 
B harassment per day during 47 days of pile removal at Pier 63. 
Therefore, the City requested, and NMFS has authorized, a total of 235 
takes of harbor porpoises by Level B harassment from Pier 63 removal. 
The largest Level A harassment zone from pile removal at Pier 63 is 29 
m. At that close range, the PSOs will be able to detect harbor 
porpoises and the City must shut down pile driving activities before 
they approach within 29 m. Therefore, no take of harbor porpoises by 
Level A harassment from pile driving at Pier 63 is requested or 
authorized.
Dall's Porpoise
    Dall's porpoises are rarely sighted in the project areas. The City 
conservatively estimates that up to 12 Dall's porpoises may enter the 
Level B harassment zone per month, for a total of 72 Dall's porpoises 
from Pier 58 reconstruction and 36 from Pier 63 removal.
    For impact installation of steel piles at Pier 58, the Level A 
harassment zone for high-frequency cetaceans is 183 m. Although the 
City must implement a shutdown zone of 185 m during this activity, the 
City anticipates that up to 12 of the Dall's porpoises (2 per month) 
that enter the Level B harassment zone could approach the project site 
closer and potentially enter the Level A harassment zone undetected 
during impact installation at Pier 58, which could occur as one group 
in one day or a single animal over two days. These Dall's porpoises 
would be counted as taken by Level A harassment, but would

[[Page 31994]]

not count toward the City's authorized number of takes of Dall's 
porpoises by Level B harassment because they would have already been 
counted as Level A harassment takes. The Level A harassment zones for 
all vibratory pile driving at Pier 58 are all under 30 m. At that 
distance, the PSOs will be able to detect Dall's porpoises and alert 
the City to cease pile driving activities before Dall's porpoises could 
enter the Level A harassment zone. Therefore, no take of Dall's 
porpoises by Level A harassment is anticipated from vibratory pile 
driving. In total, the City requested, and NMFS has authorized, take of 
72 Dall's porpoise, 60 takes by Level B harassment and 12 takes by 
Level A harassment from Pier 58 reconstruction.
    The largest Level A harassment zone from pile removal at Pier 63 is 
29 m. At that close range, the PSOs will be able to detect Dall's 
porpoises and the City must shut down pile driving activities before 
they approach within 29 m. Therefore, no take of Dall's porpoises by 
Level A harassment from pile driving at Pier 63 is requested or 
authorized. The City requested, and NMFS has authorized, 36 takes of 
Dall's porpoise by Level B harassment only for activities at Pier 63.
California Sea Lion
    During monitoring for the Pier 62 Project, a maximum of 31 
California sea lions were observed in one day, with an average of 6 
takes per day (Anchor QEA 2019). To account for unobserved animals at 
the outer extent of the Level B harassment zones, the City estimates up 
to 10 California sea lions may be taken by Level B harassment per day. 
Therefore, the City requested, and NMFS has authorized, 700 takes of 
California sea lions by Level B harassment from Pier 58 reconstruction 
and 470 takes by Level B harassment from Pier 63 removal.
    The largest Level A harassment zone for otariid pinnipeds is 6 m. 
The City must implement a minimum shutdown zone of 10 m for all 
activities. At that close range, the PSOs will be able to detect 
California sea lions and the City will implement the required shutdown 
measures before California sea lions could enter the Level A harassment 
zone. Therefore, no takes of California sea lions by Level A harassment 
are requested or authorized.
Steller Sea Lion
    Recent monitoring data from the Colman Dock Project in 2017 and 
2018 (WSDOT 2019) reported observations of 54 Steller sea lions over 99 
days of monitoring activity, which is roughly equivalent to one Steller 
sea lion every other day. To account for unobserved animals at the 
outer extent of the Level B harassment zones, the City estimates two 
Steller sea lions may be taken by Level B harassment per day. 
Therefore, the City requested, and NMFS has authorized, 140 takes of 
Steller sea lions by Level B harassment from Pier 58 reconstruction and 
94 takes by Level B harassment from Pier 63 removal.
    The largest Level A harassment zone for otariid pinnipeds is 6 m. 
The City must enforce a minimum shutdown zone of 10 m for all 
activities. At that close range, the PSOs will be able to detect 
Steller sea lions and the City will implement the required shutdown 
measures before Steller sea lions could enter the Level A harassment 
zone. Therefore, no takes of Steller sea lions by Level A harassment 
are requested or authorized.
Northern Elephant Seal
    Individual elephant seals have occasionally been reported in 
central Puget Sound (e.g., Orca Network, 2020) but are considered rare 
in the project areas. WSDOT (2019) reported observations near Alki 
Point (at the outer extent of the Level B harassment zones) and Maury 
Island (just outside the Level B harassment zones) in 2017 and 2015, 
respectively. Based on these reports, the City estimates that one 
northern elephant seal may be taken by Level B harassment per month. 
Therefore, the City requested, and NMFS has authorized, 6 takes of 
northern elephant seals by Level B harassment from Pier 58 
reconstruction and 3 takes by Level B harassment from Pier 63 removal.
    The largest Level A harassment zone (82 m) occurs during impact 
installation of steel pipe piles at Pier 58. It is unlikely that 
northern elephant seals will be found within this zone, and even more 
unlikely that northern elephant seals will be found within the Level A 
harassment zones for vibratory pile driving at either pier (less than 
12 m for all pile types). However, even if northern elephant seals are 
encountered in the project areas, at that close range, the PSOs will be 
able to detect them and the City will implement the required shutdown 
measures before any northern elephant seals could enter the Level A 
harassment zones. Therefore, no take of northern elephant seals by 
Level A harassment is requested or authorized.
Harbor Seal
    During monitoring for the Pier 62 Project, the maximum number of 
harbor seals documented as taken by Level B harassment in one day was 
54, but the average number documented per day was 5 (Anchor QEA 2019). 
To account for potentially unobserved animals at the outer extent of 
the Level B harassment zone during the previous monitoring, the City 
estimates that 10 harbor seals per day may enter the Level B harassment 
zone during pile driving work at Pier 58 for a total of 700 harbor 
seals. In addition, due to their apparent curious nature and previously 
reported close approaches to pile driving equipment (Anchor QEA 2019), 
the City estimates that of those 700 harbor seals that could enter the 
Level B harassment zone, one harbor seal may approach closer and enter 
the 82-m Level A harassment zone before the animal is detected and 
activities shut down, and thus be taken by Level A harassment on each 
day of impact pile installation at Pier 58 (40 days). These harbor 
seals would be counted as taken by Level A harassment, but would not 
count toward the City's authorized number of takes of harbor seals by 
Level B harassment because they would have already been counted as 
Level A harassment takes. The Level A harassment zones for phocids for 
all vibratory pile driving at Pier 58 are all under 12 m. At that 
distance, the PSOs will be able to detect harbor seals and alert the 
City to cease pile driving activities before harbor seals could enter 
the Level A harassment zone. Therefore, no take of harbor seals by 
Level A harassment is anticipated from vibratory pile driving at Pier 
58. In total, the City has requested, and NMFS has authorized, 700 
takes of harbor seals (660 takes by Level B harassment and 40 takes by 
Level A harassment) from Pier 58 reconstruction.
    On all but two days of work at Pier 63, the Level B harassment zone 
will be well within Elliott Bay. Since the extent of the Level B 
harassment zone for this project on most days is less than for Pier 58, 
the City estimates that up to 6 harbor seals may be taken by Level B 
harassment per day during the 47 days of pile removal at Pier 63. 
Therefore, the City requested, and NMFS has authorized, 282 takes of 
harbor seals by Level B harassment from Pier 63 removal.
    The largest Level A harassment zone for the City's planned 
activities at Pier 63 is 12 m. The City must implement a 15 m shutdown 
zone to prevent Level A take of phocids for this project (see 
Mitigation section). At that close range, the PSOs will be able to 
detect harbor seals and alert the City to cease pile driving activities 
before harbor seals could enter the Level A harassment zone. Therefore, 
no take of harbor seals by Level A harassment is requested or 
authorized for work at Pier 63.

[[Page 31995]]

    NMFS has carefully considered all information and analysis 
presented by the City as well as all other applicable information and, 
based on the best available science, concurs that the City's estimates 
of the types and amounts of take for each species and stock are 
complete and accurate. NMFS has authorized the numbers and level of 
take for each species as requested by the City.

  Table 10--Authorized Take of Marine Mammals by Level A and Level B Harassment From Pier 58 Reconstruction, by
                                 Species and Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
                                                    Authorized      Authorized
            Species                   Stock       take  by Level  take  by Level       Stock        Percent of
                                                   B  harassment   A  harassment     abundance         stock
----------------------------------------------------------------------------------------------------------------
Gray whale....................  Eastern North                  4               0          26,960            0.01
                                 Pacific.
Minke whale...................  California/                    6               0             915            0.66
                                 Oregon/
                                 Washington.
Killer whale..................  West Coast                    36               0             349           10.32
                                 Transient.
Bottlenose dolphin............  California                    42               0             453            9.27
                                 Coastal.
Long-beaked common dolphin....  California......              42               0          83,379            0.05
Harbor porpoise...............  Washington                   408              12          11,233            3.74
                                 Inland Waters.
Dall's porpoise...............  California/                   60              12          16,498            0.44
                                 Oregon/
                                 Washington.
California sea lion...........  U.S.............             700               0         257,606            0.27
Steller sea lion..............  Eastern.........             140               0          43,201            0.32
Northern elephant seal........  California                     6               0         187,386           0.003
                                 Breeding.
Harbor seal...................  Washington                   660              40          11,036            6.34
                                 Northern Inland
                                 Waters.
----------------------------------------------------------------------------------------------------------------


 Table 11--Authorized Take of Marine Mammals by Level A and Level B Harassment From Pier 63 Removal, by Species
                                     and Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
                                                    Authorized      Authorized
            Species                   Stock       take  by Level  take  by Level       Stock        Percent of
                                                   B  harassment   A  harassment     abundance         stock
----------------------------------------------------------------------------------------------------------------
Gray whale....................  Eastern North                  3               0          26,960            0.01
                                 Pacific.
Minke whale...................  California/                    3               0             915            0.33
                                 Oregon/
                                 Washington.
Killer whale..................  West Coast                    18               0             349            5.16
                                 Transient.
Bottlenose dolphin............  California                    21               0             453            4.64
                                 Coastal.
Long-beaked common dolphin....  California......              21               0          83,379            0.02
Harbor porpoise...............  Washington                   235               0          11,233             2.1
                                 Inland Waters.
Dall's porpoise...............  California/                   36               0          16,498            0.22
                                 Oregon/
                                 Washington.
California sea lion...........  U.S.............             470               0         257,606            0.18
Steller sea lion..............  Eastern.........              94               0          43,201            0.22
Northern elephant seal........  California                     3               0         187,386           0.002
                                 Breeding.
Harbor seal...................  Washington                   282               0          11,036            2.56
                                 Northern Inland
                                 Waters.
----------------------------------------------------------------------------------------------------------------

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 the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the 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 the 
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, NMFS 
considers 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, and impact on 
operations.

Time Restrictions

    The City has provided in its description of the projects that pile 
driving will occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted. In addition, all in-water 
construction will be limited to the period between September 1 and 
February 15.

Shutdown Zones

    Before the commencement of in-water construction activities, the 
City must establish shutdown zones for all activities. The purpose of a 
shutdown zone is generally to define an area within which shutdown of 
the activity will occur upon sighting of a marine mammal (or in 
anticipation of an animal entering the defined area). Pile driving must 
also not commence until all marine mammals are clear of their 
respective shutdown zones. Shutdown zones will encompass the Level A 
harassment zones for all species and

[[Page 31996]]

stocks listed in Table 3 and therefore will vary based on the activity 
type and marine mammal hearing group (Tables 12 and 13). At minimum, 
the shutdown zone for all hearing groups and all activities is 10 m. 
For in-water heavy machinery work other than pile driving (e.g., 
standard barges, etc.), if a marine mammal comes within 10 m, 
operations must cease and vessels must reduce speed to the minimum 
level required to maintain steerage and safe working conditions. This 
type of work could include, for example, the movement of the barge to 
the pile location or positioning of the pile on the substrate via a 
crane.
    The City must also establish shutdown zones for all marine mammals 
for which take has not been authorized, including SRKW and humpback 
whales, and for which incidental take has been authorized but the 
authorized number of takes has been met. These zones are equivalent to 
the Level B harassment zones for each activity (see Tables 12 and 13).
    The City must also implement shutdown measures for SRKW and 
humpback whales. If SRKW or humpback whales are sighted within the 
vicinity of the project areas and are approaching the Level B 
harassment zone, the City must shut down the pile driving equipment to 
avoid possible take. If a killer whale approaches the Level B 
harassment zone during pile driving, and it is unknown whether it is a 
SRKW or a transient killer whale, it must be assumed to be a SRKW and 
the City must implement the shutdown measure. If a SRKW, an 
unidentified killer whale, or a humpback whale enters the Level B 
harassment zone undetected, in-water pile driving must be suspended 
until the whale exits the Level B harassment zone, or 15 minutes have 
elapsed with no sighting of the animal, although with the updated 
mitigation measures in place it is unlikely that this will occur.

                                                   Table 12--Shutdown Zones for Pier 58 Reconstruction
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Shutdown zone (m)
                                                                  --------------------------------------------------------------------------------------
                                                                                                                                       All unauthorized
                       Pile type and method                                                                                             species (e.g.,
                                                                   LF cetacean   MF cetacean   HF cetacean    Phocids      Otariids     SRKW, humpback
                                                                                                                                            whale)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Timber and steel H-pile vibratory removal........................           10            10            10           10           10               1,359
24-in steel vibratory installation and removal, 30-in steel                 20            10            30           15           10               7,357
 vibratory installation..........................................
30-in steel impact installation..................................          155            10           185           85           10                 215
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                      Table 13--Shutdown Zones for Pier 63 Removal
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                     Shutdown zone (m)
                                                                  --------------------------------------------------------------------------------------
                                                                                                                                       All unauthorized
                            Pile type                                                                                                   species (e.g.,
                                                                   LF cetacean   MF cetacean   HF cetacean    Phocids      Otariids     SRKW, humpback
                                                                                                                                            whale)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Timber pile vibratory removal....................................           10            10            10           10           10               1,359
Steel pile vibratory removal.....................................           20            10            30           15           10               7,357
--------------------------------------------------------------------------------------------------------------------------------------------------------

Protected Species Observers

    The placement of protected species observers (PSOs) during all pile 
driving activities (described in the Monitoring and Reporting section) 
must ensure that the entire shutdown zone is visible. Should 
environmental conditions deteriorate such that the entire shutdown zone 
would not be visible (e.g., fog, heavy rain), pile driving must be 
delayed until the PSO is confident marine mammals within the shutdown 
zone could be detected.
Monitoring for Level A and Level B Harassment
    PSOs must monitor the entire Level B harassment zones and Level A 
harassment zones. To the extent practicable, PSOs must monitor the area 
beyond the Level B harassment zone to enable observers to be aware of 
and communicate the presence of marine mammals in the project areas 
outside the shutdown zones to the City and thus prepare for a potential 
cessation of activity should the animal enter the shutdown zone.
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 
must observe the shutdown and monitoring zones for a period of 30 
minutes. The shutdown zone is considered 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 zones listed in Tables 12 
and 13, pile driving activity must be delayed or halted. If pile 
driving is delayed or halted due to the presence of a marine mammal, 
the activity must not commence or resume until either the animal has 
voluntarily exited and been visually confirmed beyond the shutdown 
zones or 15 minutes have passed without re-detection of the animal. 
When a marine mammal for which Level B harassment take is authorized is 
present in the Level B harassment zone, activities may begin and Level 
B harassment take will be recorded. If work ceases for more than 30 
minutes, the pre-activity monitoring of the shutdown zones must 
commence. A determination that the shutdown zone is clear must be made 
during a period of good visibility (i.e., the entire shutdown zone and 
surrounding waters must be visible to the naked eye).
Coordination With Local Marine Mammal Research Network
    Prior to the start of pile driving for the day, and hourly after 
pile driving has begun, the PSOs must contact the Orca Network to find 
out the location of the nearest marine mammal sightings. The Local 
Marine Mammal Research Network consists of a list of over 600 (and 
growing) residents, scientists, and government agency personnel in the 
United States and Canada. Sightings are called or emailed into the Orca 
Network

[[Page 31997]]

and immediately distributed to other sighting networks including: The 
NMFS Northwest Fisheries Science Center, the Center for Whale Research, 
Cascadia Research, the Whale Museum Hotline, and the British Columbia 
Sightings Network.
    Sightings information collected by the Orca Network includes 
detection by hydrophone. The SeaSound Remote Sensing Network is a 
system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study orca 
communication, in-water noise, bottom fish ecology, and local climatic 
conditions. A hydrophone at the Port Townsend Marine Science Center 
measures average in-water sound levels and automatically detects 
unusual sounds. These passive acoustic devices allow researchers to 
hear when different marine mammals come into the region. This acoustic 
network, combined with the volunteer visual sighting network allows 
researchers to document presence and location of various marine mammal 
species.

Soft Start

    Soft-start procedures are used 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 must provide an initial 
set of three strikes from the hammer at reduced energy, followed by a 
30-second waiting period, then two subsequent reduced-energy strike 
sets. 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 30 minutes or longer.

Bubble Curtain

    A bubble curtain must be employed during impact installation or 
proofing of steel piles. A noise attenuation device is not required 
during vibratory pile driving. When a bubble curtain or similar measure 
is used, it must distribute air bubbles around 100 percent of the 
piling perimeter for the full depth of the water column. Any other 
attenuation measure must provide 100 percent coverage in the water 
column for the full depth of the pile. The lowest bubble ring must be 
in contact with the mudline for the full circumference of the ring. The 
weights attached to the bottom ring must ensure 100 percent mudline 
contact. Parts of the ring or other objects must not prevent full 
mudline contact.
    Based on our evaluation of the City's proposed mitigation measures, 
as well as other measures required by NMFS, NMFS has determined that 
the required mitigation measures provide the means of effecting the 
least practicable impact on the affected species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance for the Pier 58 Reconstruction Project. 
NMFS also finds that the City's proposed mitigation measures and other 
measures required by NMFS provide the means of effecting the least 
practicable impact on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance for the Pier 63 Removal Project.

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 while 
conducting the activities. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and,
     Mitigation and monitoring effectiveness.

Visual Monitoring

    Marine mammal monitoring during pile driving activities must be 
conducted by PSOs meeting NMFS' standards and in a manner consistent 
with the following:
     Independent PSOs (i.e., not construction personnel) who 
have no other assigned tasks during monitoring periods must be used;
     At least one PSO must have prior experience performing the 
duties of a PSO during construction activity pursuant to a NMFS-issued 
incidental take authorization;
     Other PSOs may substitute education (degree in biological 
science or related field) or training for experience; and
     Where a team of three or more PSOs is required, a lead 
observer or monitoring coordinator must be designated. The lead 
observer is required to have prior experience working as a marine 
mammal observer during construction.
    PSOs must have the following additional qualifications:
     Ability to conduct field observations and collect data 
according to assigned protocols;
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
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.
    The City must have PSOs stationed around Elliott Bay to monitor 
during all pile driving activities. During removal of timber and/or 
steel H-piles at Pier 58

[[Page 31998]]

and Pier 63, two PSOs must monitor the area, one at the construction 
site and one at Alki Point on the south side of Elliott Bay. During 
vibratory removal and/or installation of steel piles at Pier 58 and 
Pier 63, PSOs must be stationed at the same locations as above, with an 
additional PSO monitoring from Magnolia on the north side of Elliott 
Bay and one PSO monitoring from the Seattle-Bainbridge ferry. Impact 
installation of 30-inch permanent steel piles at Pier 58 is expected to 
occur on the same day as vibratory installation of those piles. If all 
vibratory installation has concluded for the day, only the PSO 
stationed at the construction site is required to continue monitoring 
during impact pile driving.
    Monitoring must be conducted 30 minutes before, during, and 30 
minutes after all in water construction activities. In addition, 
observers must record all incidents of marine mammal occurrence, 
regardless of distance from activity, and must 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 30 minutes.

Reporting

    A draft marine mammal monitoring report must be submitted to NMFS 
within 90 days after the completion of pile driving activities, or 60 
days prior to a requested date of issuance of any future IHAs for the 
project, or other projects at the same location, whichever comes first. 
All draft and final monitoring reports must be submitted to 
[email protected] and [email protected]. The marine 
mammal report must include an overall description of work completed, a 
narrative regarding marine mammal sightings, and associated PSO data 
sheets. Specifically, the report must include:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period, including: (a) How many and what type of piles were 
driven or removed and the method (i.e., impact or vibratory); and (b) 
the total duration of time for each pile (vibratory driving) and number 
of strikes for each pile (impact driving);
     PSO locations during marine mammal monitoring; and
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance.
    For each observation of a marine mammal, the following must be 
reported:
     Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting;
     Time of sighting;
     Identification of the animal(s) (e.g., genus/species, 
lowest possible taxonomic level, or unidentified), PSO confidence in 
identification, and the composition of the group if there is a mix of 
species;
     Distance and location of each observed marine mammal 
relative to the pile being driven or hole being drilled for each 
sighting;
     Estimated number of animals (min/max/best estimate);
     Estimated number of animals by cohort (adults, juveniles, 
neonates, group composition, etc.);
     Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such as 
ceasing feeding, changing direction, flushing, or breaching);
     Number of marine mammals detected within the harassment 
zones, by species; and
     Detailed information about implementation of any 
mitigation (e.g., shutdowns and delays), a description of specified 
actions that ensued, and resulting changes in behavior of the 
animal(s), if any.
    If no comments are received from NMFS within 30 days, the draft 
reports will constitute the final reports. If comments are received, a 
final report addressing NMFS' comments must be submitted within 30 days 
after receipt of comments. All PSO datasheets and/or raw sighting data 
must be submitted with the draft marine mammal report.
    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, the City must report the 
incident to the Office of Protected Resources (OPR) 
([email protected] and [email protected]), NMFS (301-
427-8401) and to the West Coast Region (WCR) regional stranding 
coordinator (866-767-6114) as soon as feasible. If the death or injury 
was clearly caused by the specified activity, the City must immediately 
cease the specified activities until NMFS is able to review the 
circumstances of the incident and determine what, if any, additional 
measures are appropriate to ensure compliance with the terms of the 
IHAs. The City must not resume their activities until notified by NMFS.
    The report must include the following information:
    1. Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    2. Species identification (if known) or description of the 
animal(s) involved;
    3. Condition of the animal(s) (including carcass condition if the 
animal is dead);
    4. Observed behaviors of the animal(s), if alive;
    5. If available, photographs or video footage of the animal(s); and
    6. General circumstances under which the animal was discovered.

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 impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338; 
September 29, 1989), the impacts from other past and ongoing 
anthropogenic activities are incorporated into this analysis via their 
impacts on the 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).
    Pile driving activities from Pier 58 reconstruction and Pier 63 
removal have the potential to disturb or displace marine mammals and 
cause auditory

[[Page 31999]]

injury (PTS). Specifically, the project activities may result in take, 
in the form of Level A and Level B harassment, from underwater sounds 
generated from pile driving. Potential takes could occur if individuals 
are present in the ensonified zone when these activities are underway.
    The takes from Level A and Level B harassment would be due to 
potential behavioral disturbance, TTS, and PTS. Serious injury or 
mortality are not anticipated or authorized given the nature of the 
activities and measures designed to minimize the possibility of injury 
to marine mammals. The potential for harassment is minimized through 
the construction method and the implementation of the required 
mitigation measures (see Mitigation section).
    To avoid repetition, the majority of our analysis applies to all 
the species listed in Table 3, and to both the Pier 58 and Pier 63 
IHAs, given that the anticipated effects of the City's two projects on 
these different marine mammal stocks are expected to be relatively 
similar in nature. Where there are special circumstances for a species 
or stock (e.g., gray whales), they are included as a separate 
subsection below. Similarly, where there are differences between the 
two IHAs, they are highlighted below.
    NMFS has identified key factors which may be employed to assess the 
level of analysis necessary to conclude whether potential impacts 
associated with a specified activity should be considered negligible. 
These include (but are not limited to) the type and magnitude of 
taking, the amount and importance of the available habitat for the 
species or stock that is affected, the duration of the anticipated 
effect to the species or stock, and the status of the species or stock. 
The following factors support negligible impact determinations for all 
affected stocks.
    No take by Level A harassment is anticipated or authorized 
incidental to the Pier 63 Removal Project. For the Pier 58 
Reconstruction Project, take by Level A harassment is authorized for 
three species (harbor seals, harbor porpoise, and Dall's porpoise) to 
account for the possibility that an animal could enter a Level A 
harassment zone prior to detection, and remain within that zone for a 
duration long enough to incur PTS before being observed and the City 
shutting down pile driving activity. Any take by Level A harassment is 
expected to arise from, at most, a small degree of PTS, i.e., minor 
degradation of hearing capabilities within regions of hearing that 
align most completely with the energy produced by impact pile driving 
(i.e. the low-frequency region below 2 kHz), not severe hearing 
impairment or impairment within the ranges of greatest hearing 
sensitivity. 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. Two of the 3 species for which Level A 
harassment is authorized are high-frequency cetaceans (harbor porpoise 
and Dall's porpoise), and the hearing ability of the third species for 
which Level A harassment is authorized (harbor seal) below 2 kHz is 
also poor (NMFS, 2018). Given the hearing ranges of these 3 species, 
PTS incurred at the low frequencies of pile driving noise would not 
interfere either with conspecific communication or echolocation, and 
therefore would not be expected to impact on the survival or 
reproductive abilities of the affected individuals, let alone the stock 
or population.
    Additionally, the amount of authorized take by Level A harassment 
is very low for all marine mammal stocks and species. For the Pier 58 
Reconstruction Project, for 10 of 13 stocks, NMFS anticipates and 
authorizes no Level A harassment take over the duration of the IHA 
period; for the other three stocks, NMFS authorizes no more than 40 
takes by Level A harassment for any species or stock. These low numbers 
of takes of individuals by Level A harassment (and involving only a 
small degree of PTS) are not expected to affect the reproductive 
success or survival of any individuals, much less result in adverse 
impacts on the species or stock.
    As described above, NMFS expects that marine mammals would likely 
move away from an aversive stimulus, especially at levels that would be 
expected to result in PTS, given sufficient notice through use of soft 
start. The City is also required to shut down pile driving activities 
if marine mammals approach within hearing group-specific zones that 
encompass the Level A harassment zones (see Tables 12 and 13), further 
minimizing the likelihood and degree of PTS that would be incurred. 
Even absent mitigation, no serious injury or mortality from 
construction activities is anticipated or authorized.
    Effects on individuals that are taken by Level B harassment in the 
form of behavioral disruption, on the basis of reports in the 
literature as well as monitoring from other similar activities, will 
likely be limited to reactions such as avoidance, increased swimming 
speeds, increased surfacing time, or decreased foraging (if such 
activity were occurring) (e.g., Thorson and Reyff 2006). Most likely, 
individuals would simply move away from the sound source and 
temporarily avoid the area where pile driving is occurring. If sound 
produced by project activities is sufficiently disturbing, animals are 
likely to simply avoid the area while the activities are occurring, 
particularly as the project is located on a busy waterfront with high 
amounts of vessel traffic. We expect that any avoidance of the project 
areas by marine mammals would be temporary in nature and that any 
marine mammals that avoid the project areas during construction would 
not be permanently displaced. Short-term avoidance of the project areas 
and energetic impacts of interrupted foraging or other important 
behaviors is unlikely to affect the reproduction or survival of 
individual marine mammals, and the effects of behavioral disturbance on 
individuals is not likely to accrue in a manner that would affect the 
rates of recruitment or survival of any affected stock.
    Additionally, and 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. However, 
since the hearing sensitivity of individuals that incur TTS is expected 
to recover completely within minutes to hours, it is unlikely that the 
brief hearing impairment would affect the individual's long-term 
ability to forage and communicate with conspecifics, and would 
therefore not likely impact reproduction or survival of any individual 
marine mammal, let alone adversely affect rates of recruitment or 
survival of the species or stock.
    The projects are also not expected to have significant adverse 
effects on affected marine mammals' habitats. The project activities 
will not modify existing marine mammal habitat for a significant amount 
of time. The activities may cause some fish to leave the area of 
disturbance, thus temporarily impacting marine mammals' foraging 
opportunities in a limited portion of the foraging range; but, because 
of the short duration of the activities and the relatively small area 
of the habitat that may be affected (with no known particular 
importance to marine mammals), the impacts to marine mammal habitat are 
not expected to cause significant or long-term negative consequences. 
Aside from the biologically important area (BIA) for gray whales 
described below, there are no known areas of importance for other 
marine mammals, such as feeding or pupping areas, in the project area.

[[Page 32000]]

    For all species and stocks, and both project areas (Pier 58 and 
63), take would occur within a limited, relatively confined area 
(Elliott Bay within central Puget Sound) of the stocks' ranges. Given 
the availability of suitable habitat nearby, any displacement of marine 
mammals from the project areas is not expected to affect marine 
mammals' fitness, survival, and reproduction due to the limited 
geographic area that will be affected in comparison to the much larger 
habitat for marine mammals in Puget Sound. Level A harassment and Level 
B harassment will be reduced to the level of least practicable adverse 
impact to the marine mammal species or stocks and their habitat through 
use of mitigation measures described herein. Some individual marine 
mammals in the project areas may be present and be subject to repeated 
exposure to sound from pile driving on multiple days. However, these 
individuals would likely return to normal behavior during gaps in pile 
driving activity. The Seattle Waterfront is a busy industrial area and 
monitoring reports from previous in-water pile driving activities in 
the area (e.g., WSDOT, 2022; Anchor QEA, 2019) indicate that marine 
mammals continue to remain in the greater project area throughout pile 
driving activities. Therefore, any behavioral effects of repeated or 
long duration exposures are not expected to negatively affect survival 
or reproductive success of any individuals. Thus, even repeated Level B 
harassment of some small subset of an overall stock is unlikely to 
result in any effects on rates of reproduction and survival of the 
stock.

Gray Whales

    Puget Sound is part of a BIA for migrating gray whales 
(Calambokidis et al., 2015). While Elliott Bay is included in the BIA, 
gray whales typically remain further north in Puget Sound, primarily in 
the waters around Whidbey Island (Calambokidis et al., 2018). Gray 
whales are rarely observed in Elliott Bay. Therefore, even though the 
project areas overlap with the BIA, the infrequent occurrence of gray 
whales suggests that the projects would have minimal, if any, impact on 
the migration of gray whales in the BIA, and would therefore not affect 
reproduction or survival.
    There is an ongoing UME for gray whales (see the Description of 
Marine Mammals in the Area of Specified Activities section in the 
notice of proposed IHAs (87 FR 12089; March 3, 2022)). However, we do 
not expect the authorized takes to exacerbate or compound upon this 
ongoing UME. As noted previously, no Level A harassment, serious 
injury, or mortality is expected or authorized, and any Level B 
harassment takes of gray whales would most likely be in the form of 
behavioral disturbance. Preliminary findings from necropsied gray 
whales that are considered part of the ongoing UME have shown evidence 
of emaciation, suggesting that impacts to feeding would be of most 
concern. However, the project areas have not been identified as 
important for feeding of gray whales. Additionally, the project areas 
are not considered important for breeding gray whales. Therefore the 
projects are unlikely to disrupt any critical behaviors (e.g., feeding, 
mating) or have any effect on the reproduction or survival of gray 
whales, even in light of the ongoing UME.
    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 any of the species or stocks 
through effects on annual rates of recruitment or survival:
     No mortality or serious injury is anticipated or 
authorized for either project;
     No take of any species by Level A harassment is 
anticipated or authorized for the Pier 63 Removal Project;
     For the Pier 58 Reconstruction Project, Level A harassment 
is not anticipated or authorized for 8 of the 11 species. For the other 
3 species (2 high-frequency cetaceans and 1 phocid pinniped), the 
amount of Level A harassment is low and would be in the form of a 
slight degree of PTS in limited low frequency ranges (<2 kHz) which are 
not the most sensitive primary hearing ranges for these species and 
would not interfere with conspecific communication or echolocation;
     For both projects, Level B harassment would be in the form 
of behavioral disturbance, primarily resulting in avoidance of the 
project areas around where impact or vibratory pile driving is 
occurring, and some low-level TTS that may limit the detection of 
acoustic cues for relatively brief amounts of time in relatively 
confined footprints of the activities;
     Nearby areas of similar habitat value within Puget Sound 
are available for marine mammals that may temporarily vacate the 
project areas during construction activities for both projects;
     Effects on species that serve as prey for marine mammals 
from the activities are expected to be short-term and, therefore, any 
associated impacts on marine mammal feeding are not expected to result 
in significant or long-term consequences for individuals, or to accrue 
to adverse impacts on their populations from either project;
     The number of anticipated takes by Level B harassment is 
relatively low for all stocks for both projects;
     The ensonified areas from both projects are very small 
relative to the overall habitat ranges of all species and stocks, and 
will not adversely affect ESA-designated critical habitat, or cause 
more than minor impacts in any BIAs or any other areas of known 
biological importance;
     The lack of anticipated significant or long-term negative 
effects to marine mammal habitat from either project;
     The efficacy of the mitigation measures in reducing the 
effects of the specified activities on all species and stocks for both 
projects;
     The enhanced mitigation measures (e.g., shutdown zones 
equivalent to the Level B harassment zones) to eliminate the potential 
for any take of unauthorized species; and
     Monitoring reports from similar work in Puget Sound that 
have documented little to no behavioral effect on individuals of the 
same species that could be impacted by the specified activities from 
both projects, suggesting the degree/intensity of behavioral harassment 
would be minimal.
    Based on the analysis contained herein of the likely effects of the 
specified activities 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 Pier 58 
Reconstruction Project will have a negligible impact on all affected 
marine mammal species or stocks. NMFS also finds that the total marine 
mammal take from the Pier 63 Removal project 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. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors

[[Page 32001]]

may be considered in the analysis, such as the temporal or spatial 
scale of the activities.
    The authorized take for each project is below one third of the 
population for all marine mammal stocks (Tables 10 and 11).
    Based on the analysis contained herein of the proposed activities 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals would be taken relative to the population size of the 
affected species or stocks for the Pier 58 Reconstruction Project. NMFS 
also finds that small numbers of marine mammals would be taken relative 
to the population size of the affected species or stocks for the Pier 
63 Removal Project.

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.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is authorized or expected 
to result from these activities. Therefore, NMFS has determined that 
consultation under section 7 of the ESA is not required for this 
action.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of two IHAs) 
with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs 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 IHAs qualifies to be categorically excluded 
from further NEPA review.

Authorizations

    As a result of these determinations, NMFS has issued two IHAs to 
the City, one each for their Pier 58 Reconstruction Project and their 
Pier 63 Removal Project on the Seattle Waterfront in Seattle, 
Washington (both effective from August 1, 2022 through July 31, 2023), 
with the previously discussed mitigation, monitoring, and reporting 
requirements incorporated.

    Dated: May 20, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2022-11280 Filed 5-25-22; 8:45 am]
BILLING CODE 3510-22-P