[Federal Register Volume 89, Number 68 (Monday, April 8, 2024)]
[Notices]
[Pages 24436-24455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07338]



[[Page 24436]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD824]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to the Terminal 4 Expansion and 
Redevelopment Project at the Port of Grays Harbor, Washington

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments on proposed authorization and possible renewal.

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SUMMARY: NMFS has received a request from Ag Processing Inc. (AGP) for 
authorization to take marine mammals incidental to the Terminal 4 (T4) 
Expansion and Redevelopment Project (Project) at the Port of Grays 
Harbor (Port) in both the City of Aberdeen and City of Hoquiam, Grays 
Harbor County, Washington. Pursuant to the Marine Mammal Protection Act 
(MMPA), NMFS is requesting comments on its proposal to issue an 
incidental harassment authorization (IHA) to incidentally take marine 
mammals during the specified activities. NMFS is also requesting 
comments on a possible one-time, 1-year renewal that could be issued 
under certain circumstances and if all requirements are met, as 
described in Request for Public Comments at the end of this notice. 
NMFS will consider public comments prior to making any final decision 
on the issuance of the requested MMPA authorization and agency 
responses will be summarized in the final notice of our decision.

DATES: Comments and information must be received no later than May 8, 
2024.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, NMFS 
and should be submitted via email to [email protected]. 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 
below.
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments, including all attachments, must 
not exceed a 25-megabyte file size. All comments received are a part of 
the public record and will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

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

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.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA) 
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 NAO 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 preliminarily determined 
that the issuance of the proposed IHA qualifies to be categorically 
excluded from further NEPA review. We will review all comments 
submitted in response to this notice prior to concluding our NEPA 
process or making a final decision on the IHA request.

Summary of Request

    On May 12, 2023, NMFS received a request from AGP for an IHA to 
take marine mammals incidental to construction activities in the City 
of Aberdeen and City of Hoquiam, Grays Harbor County, Washington. 
Following NMFS' review of the application, AGP submitted a revised 
version on August 4, 2023. The application was deemed adequate and 
complete on February 20, 2024. AGP's request is for take of harbor 
seal, California sea lion, Steller sea lion and harbor porpoise by 
Level B harassment and, for harbor seal and harbor porpoise, by Level A 
harassment. Neither AGP nor NMFS expect serious injury or mortality to 
result from this activity and, therefore, an IHA is appropriate.

Description of Proposed Activity

Overview

    AGP would work in partnership with the Port to construct a new 
export terminal at T4. AGP and the Port would each undertake separate 
stages of the construction; however, the IHA, if issued, would be held 
by AGP as the responsible party, and would authorize take associated 
with the combined specified activity, with AGP acting on behalf of the 
Port for that portion. The activity includes removal of existing piles 
and the installation of both temporary and permanent piles of various 
sizes. The construction would occur for 105 days, which would occur 
intermittently over the in-water work window (discussed below). Takes 
of marine mammals by Level A and Level B harassment would occur due to 
both

[[Page 24437]]

impact and vibratory pile driving and vibratory removal. The purpose of 
the project is to expand T4 and redevelop adjacent parcels to increase 
rail and shipping capacity at the Port in order to accommodate growth 
of dry bulk, breakbulk, and roll-on/roll-off cargos.

Dates and Duration

    This IHA would be valid for one year from July 16, 2024 through 
July 15, 2025. Due to in-water work timing restrictions to protect 
Endangered Species Act (ESA)-listed salmonids, all planned in-water 
construction including pile removal and installation is limited to a 
work window from July 16 through February 15. Pile driving would be 
completed intermittently throughout the daylight hours. All pile 
driving is expected to be completed during one season of construction.

Specific Geographic Region

    The Project site is situated in both the City of Aberdeen and City 
of Hoquiam, Grays Harbor County, Washington in Township 17 North, Range 
9 West, section 17, near where the Chehalis River enters Grays Harbor 
(figure 1). Land use in the Aberdeen area is a mix of residential, 
commercial, industrial, and open space and/or undeveloped lands.
[GRAPHIC] [TIFF OMITTED] TN08AP24.018

Detailed Description of the Specified Activity

    The T4 Project in-water work will include upgrades to the fender 
system on the T4 dock and the installation of a ship loader facility. 
The existing timber-piled fender system at the Terminal 4 Berth A (T4A) 
will be replaced with a modern pile-supported panel system and a modern 
suspended panel system at Berth B (T4B). Terminal 4's Berths A and B 
have distinctly different structural systems, necessitating piles to 
support the fender system at Berth A but not at Berth B. The new fender 
system will consist of a series of steel fender panels, each supported 
by one or more steel pipe piles at each fender location along T4A and 
supported by the existing deck only along T4B.
    The proposed Project consists of vibratory pile driving 
installation and removal and impact pile installation. Existing piles 
will be removed from the substrate using the direct pull method. If 
direct pulling is unsuccessful, vibratory extraction will be used. 
Vibratory extractors are commonly used to remove steel pile where 
sediments allow. The vibratory hammer is mounted to the top of the 
pile, and the pile is then vibrated between 1,200 and 2,400 vibrations 
per minute. The vibrations liquefy and loosen the sediment surrounding 
the pile, allowing it to be removed with an upward lift from the crane. 
Broken or damaged piles that cannot be removed by either the vibratory 
hammer or direct pull will be cut off at or below the mudline. Based on 
the substrate conditions at the site, it is anticipated that most of 
the existing timber piles will be removed by direct pull. However, for 
the purposes of estimating take it is assumed they would all be subject 
to vibratory removal. The Project will include the removal of up to:

 50, 18-inch timber piles
 6, 12-inch steel H-piles
 27, 16.5-inch pre-stressed concrete octagonal sections


[[Page 24438]]


    New and replacement piles will be installed with a vibratory hammer 
or combination of a vibratory hammer and impact hammer. Impact pile 
driving would be avoided to the extent feasible. Piles will be aligned 
with steel templates to ensure the correct position of the piles 
relative to each other. The proposed Project will also include 
installation of up to:

 50, 36-inch steel pipe piles
 24, 24-inch steel pipe piles
 6, 12-inch steel H-sections
 15, 18-inch steel pipe piles,
 24, 24 to 30-inch steel pipe piles.

    Additionally, a total of up to 24 temporary 24-inch steel piles may 
be installed for temporary construction use or to address unforeseen 
conditions. The temporary piles will be placed and removed as 
necessary. A summary of the proposed pile removal and installation 
methods for the dock upgrades and the ship loader facility are 
presented below in table 1 and table 2.

                                                          Table 1--Planned In-Water Pile Removal and Installation for T4 Dock Upgrades
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                                                                            Removal/install                          Total days of                                            Impact strikes per
            Location              Pile type and size       Activity             method          Number of piles        operation         Piles per day     Hours vib install         pile
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Permanent Piles
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Terminal 4A and 4B..............  Up to 18-inch       Removal...........  Vibratory hammer,   Up to 50..........  Up to 12..........  Up to 10..........  Up to 5.0/day or    None.
                                   timber piles.                           direct pull.                                                                    ~0.5/pile.
Terminal 4B.....................  18-inch steel pipe  Installation......  Vibratory hammer..  Up to 15..........  Up to 6...........  Up to 6...........  Up to 3.0/day or    None.
                                   pile.                                                                                                                   ~0.5/pile.
Terminal 4A.....................  24- to 30-inch      Installation......  Vibratory hammer..  Up to 24..........  Up to 18..........  Up to 6...........  Up to 6.0/day or    None.
                                   steel pipe pile.                                                                                                        ~1.0/pile.
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                                                     Table 2--In-Water Pile Removal and Installation for New AGP Export Terminal, Shiploader
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                                                                            Install/removal                          Total days of                            Avg. hours      Impact strikes per
            Location              Pile type and size       Activity             method          Number of piles        operation         Piles per day    vibratory per pile         pile
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Permanent Piles
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Terminal 4B.....................  12-inch steel H     Removal...........  Vibratory hammer    Up to 6...........  Up to 3...........  Up to 3...........  Up to 1.5/day or    None.
                                   sections.                               or direct pull.                                                                 ~0.5/pile.
Terminal 4B.....................  16.5-inch concrete  Removal...........  Vibratory hammer,   Up to 27..........  Up to 9...........  Up to 8...........  Up to 8/day or      None.
                                   octagonal pile.                         direct pull.                                                                    ~1.0/pile.
Terminal 4B.....................  36-inch-diameter    Install...........  Vibratory and       Up to 50..........  Up to 30..........  Up to 4...........  Up to 8/day or ~2/  Up to 2,400/day or
                                   steel pipe pile.                        impact hammer.                                                                  pile.               ~600/pile.
Terminal 4B.....................  New 24-inch steel   Install...........  Vibratory and       Up to 24..........  Up to 12..........  Up to 4...........  Up to 6/day or      Up to 2,000/day or
                                   pipe pile.                              impact hammer.                                                                  ~1.5/pile.          ~500/pile.
Terminal 4B.....................  12-inch steel H-    Install...........  Vibratory hammer..  Up to 6...........  Up to 3...........  Up to 3...........  Up to 1.5/day or    None.
                                   piles.                                                                                                                  ~0.5/pile.
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                                                                                         Temporary Piles
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Terminal 4B.....................  24-inch steel pipe  Install...........  Vibratory hammer..  Up to 24..........  Up to 6...........  Up to 8...........  Up to 4/day or      None.
                                   pile.                                                                                                                   ~0.5/pile.
Terminal 4B.....................  24-inch steel pipe  Removal...........  Vibratory hammer..  Up to 24..........  Up to 6...........  Up to 8...........  Up to 4/day or      None.
                                   pile.                                                                                                                   ~0.5/pile.
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    Above water construction would include rail upgrades and T4 cargo 
yard relocation and expansion which would all occur landward of the 
Grays Harbor shoreline.
    This above-water work is not expected to result in any take of 
marine mammals. Noise generated above the water would not be 
transmitted into the water to the degree that resulting underwater 
noise would be expected to cause disturbance and, none of the pinniped 
haulouts are located close enough to the project area to cause 
disturbance. Therefore, airborne noise is not considered further in 
this document.
    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, instead of reprinting the information. Additional 
information regarding population trends and threats may be found in 
NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 3 lists all species or stocks for which take is expected and 
proposed to be authorized for this activity and summarizes information 
related to the population or stock, including regulatory status under 
the MMPA and 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 proposed to be authorized here, 
PBR and annual serious injury and mortality from anthropogenic sources 
are included here as gross indicators of the status of the species or 
stocks and other threats.
    Marine mammal abundance estimates presented in this document 
represent

[[Page 24439]]

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 managed stocks in this region are assessed in NMFS' Alaska 
and Pacific SARs. All values presented in table 3 are the most recent 
available at the time of publication (including from the draft 2023 
SARs) and are available online at: (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports).

                                            Table 3--Species Likely Impacted by the Specified Activities \1\
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                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             Strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \2\          abundance survey)\3\                SI \4\
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                                                  Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Northern Oregon/,        -,-; N              22,074 (0.391, 16,068,        161        3.2
                                                                Washington Coast.                            2022).
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                                                               Order Carnivora--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       >321
                                                                                                             2014).
    Steller Sea Lion................  Eumetopias jubatus.....  Eastern................  -,-; N              36,308 (N/A, 36,308,        2,178       93.2
                                                                                                             2022).
Family Phocidae (earless seals):
    Harbor Seal.....................  Phoca vitulina.........  Oregon/Washington        -, -, N             24,731\5\ (1999)......        UNK       10.6
                                                                Coastal Stock.
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\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/;).
\2\ 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.
\3\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\4\ 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, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
\5\ There is no current estimate of abundance available for this stock. Value presented is the most recent available and based on 1999 data.

    As indicated above, all four species (with four managed stocks) in 
table 3 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur. While killer whales 
(Orcincus orca), humpback whales (Megaptera novaeangilae), gray whales 
(Eschrichtius robustus), and minke whales (Balaenoptera acutorostrada) 
have been sighted in Grays Harbor, the temporal and/or spatial 
occurrence of these species is such that take is not expected to occur. 
Furthermore, if any of these species are sighted approaching Level B 
harassment zones, construction activities would be shut down in order 
to avoid harassment. Therefore, take is not expected for these species 
and they are not discussed further in this document.

Harbor Porpoise

    In the eastern North Pacific Ocean, harbor porpoise are found in 
coastal and inland waters from Point Barrow, along the Alaskan coast, 
and down the west coast of North America to Point Conception, 
California (Gaskin, 1984). Harbor porpoise are known to occur year-
round in the inland trans-boundary waters of Washington and British 
Columbia, Canada (Osborne et al., 1988), and along the Oregon/
Washington coast (Barlow, 1988; Barlow et al., 1988, Green et al,. 
1992). Little information exists on harbor porpoise movements and stock 
structure in Grays Harbor. Hall (2004) found that the frequency of 
sightings of harbor porpoises decreased with increasing depths beyond 
150 meters, with the highest numbers observed at water depths ranging 
from 61 to 100 meters. Although harbor porpoises have been spotted in 
deep water, they tend to remain in shallower shelf waters (less than 
150 meters), where they are most often observed in small groups of few 
individuals (Baird, 2003). Stranding incidents in the area have been 
rare.

California Sea Lion

    California sea lions are found from Vancouver Island, British 
Columbia, to the southern tip of Baja, California. California Sea lions 
breed on the offshore islands of southern and central California from 
May through July (Heath and Perrin, 2008). The California sea lion is 
the most frequently sighted pinniped found in Washington waters and 
uses haulout sites located on jetties, offshore rocks and islands, log 
booms, marina docks, and navigation buoys. Only male California sea 
lions migrate into Pacific Northwest waters, with females remaining in 
waters near their breeding rookeries off the coast of California and 
Mexico. The California sea lion was considered rare in Washington 
waters prior to the 1950s.
    The nearest documented California sea lion haulout sites to the 
Project site are at the Westport Docks, approximately 13 miles west of 
the Project site near the entrance to Grays Harbor (Jeffries et al. 
2015), and another haulout observed in 1997 referred to as the mid-
harbor flats located approximately 5.65 miles west of the Project site 
(Washinton Department of Fish and Wildlife (WDFW), 2022). During six 
aerial surveys conducted in 2014 and 2015, a total of 113 California 
sea lions were observed in Grays Harbor on the Westport docks (Jeffries 
et al., 2015). Occurrences of California sea lion strandings have been 
rare near the project area.

Steller Sea Lion

    Steller sea lions range from southeast Alaska to central 
California, including

[[Page 24440]]

Washington. The species prefers beaches, ledges, and rocky reefs for 
breeding and hauling out (NMFS 2023c). In Washington, Steller sea lions 
occur mainly along the outer coast from the Columbia River to Cape 
Flattery (Jeffries et al., 2000). Smaller numbers use the Strait of 
Juan de Fuca, the San Juan Islands, and Puget Sound south to about the 
Nisqually River mouth in Thurston and Pierce counties (Wiles, 2015). 
The Eastern Depleted Population Segment (DPS) of Steller sea lions has 
historically bred on rookeries located in Southeast Alaska, British 
Columbia, Oregon, and California. However, within the last several 
years, a new rookery has become established on the outer Washington 
coast at the Carroll Island and Sea Lion Rock complex (M.M. Muto et 
al., 2021). Most pups (86 percent) are born in rookeries in southeast 
Alaska and British Columbia (Wiles, 2015). Steller sea lions occupy 22 
haulouts in Washington, the largest of which are on the outer Olympic 
coast (Wiles, 2015).
    WDFW Priority Habitat and Species Data does not indicate any 
observances of Steller sea lions in Grays Harbor (WDFW, 2022). The 
nearest documented Steller sea lion haulout sites to the Project site 
are at Split Rock, 35 miles north of the entrance to Grays Harbor, and 
at the mouth of the Columbia River, 46 miles south of the entrance to 
Grays Harbor (Jeffries et al., 2000). A few Steller sea lions may haul 
out on buoys near the Westport marina, located 13 miles west of the 
Project site, or at Westport docks, similar to California sea lions. 
Steller sea lion strandings have been rare near the project area.) No 
other confirmed Steller sea lion observations have been located 
specific to Grays Harbor.

Harbor Seal

    Harbor seals inhabit coastal and estuarine waters off Baja 
California, north along the western coasts of the continental U.S., 
British Columbia, and southeast Alaska, west through the Gulf of Alaska 
and Aleutian Islands, and in the Bering Sea north to Cape Newenham and 
the Pribilof Islands (Carretta et al., 2014). They haul out on rocks, 
reefs, beaches, and drifting glacial ice and feed in marine, estuarine, 
and occasionally fresh waters. Harbor seals generally are non-
migratory, with local movements associated with such factors as tides, 
weather, season, food availability, and reproduction (Fisher, 1952; 
Bigg 1969, 1981). Harbor seals are the only pinniped species that 
occurs year-round and breeds in Washington waters. Pupping seasons vary 
by geographic region, with pups born in coastal estuaries (Columbia 
River, Willapa Bay, and Grays Harbor) from mid-April through June 
(Jeffries et al., 2000). According to WDFW's atlas of seal and sea lion 
haulout sites (Jeffries et al., 2000), all haulouts in Grays Harbor are 
associated with tidal flats; at high tide it is assumed that these 
animals are foraging elsewhere in the estuary. The nearest documented 
harbor seal haulout site to the Project site is a low-tide haulout 
located 6 miles to the west.

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. 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, 2019) recommended that marine mammals be divided into hearing 
groups based on directly measured (behavioral or auditory evoked 
potential techniques) or estimated hearing ranges (behavioral response 
data, anatomical modeling, etc.). 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,
 Cephalorhynchid, 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 pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth et al., 
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

    This section provides a discussion of the ways in which components 
of the specified activity may impact marine mammals and their habitat. 
The Estimated Take of Marine Mammals section later in this document 
includes a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The Negligible Impact Analysis 
and Determination section considers the content of this section, the 
Estimated Take of Marine Mammals section, and the Proposed Mitigation 
section, to draw conclusions regarding the likely impacts of these 
activities on the reproductive success or survivorship

[[Page 24441]]

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.

Description of Sounds Sources

    The marine soundscape is comprised of both ambient and 
anthropogenic sounds. Ambient sound is defined as the all-encompassing 
sound in a given place and is usually a composite of sound from many 
sources both near and far. The sound level of an area is defined by the 
total acoustical energy being generated by known and unknown sources. 
These sources may include physical (e.g., waves, wind, precipitation, 
earthquakes, ice, atmospheric sound), biological (e.g., sounds produced 
by marine mammals, fish, and invertebrates), and anthropogenic sound 
(e.g., vessels, dredging, aircraft, construction).
    The sum of the various natural and anthropogenic sound sources at 
any given location and time--which comprise ``ambient'' or 
``background'' sound--depends not only on the source levels (as 
determined by current weather conditions and levels of biological and 
shipping activity) but also on the ability of sound to propagate 
through the environment. In turn, sound propagation is dependent on the 
spatially and temporally varying properties of the water column and sea 
floor, and is frequency-dependent. As a result of the dependence on a 
large number of varying factors, ambient sound levels can be expected 
to vary widely over both coarse and fine spatial and temporal scales. 
Sound levels at a given frequency and location can vary by 10 to 20 dB 
from day to day (Richardson et al., 1995). The result is that, 
depending on the source type and its intensity, sound from the 
specified activity may be a negligible addition to the local 
environment or could form a distinctive signal that may affect marine 
mammals.
    In-water construction activities associated with the project would 
include impact pile driving, vibratory pile driving, and vibratory pile 
removal. The sounds produced by these activities fall into one of two 
general sound types: impulsive and non-impulsive. Impulsive sounds 
(e.g., explosions, gunshots, sonic booms, impact pile driving) are 
typically transient, brief (less than 1 second), broadband, and consist 
of high peak sound pressure with rapid rise time and rapid decay (ANSI, 
1986; NIOSH, 1998; ANSI, 2005; NMFS, 2018). Non-impulsive sounds (e.g., 
aircraft, machinery operations such as drilling or dredging, vibratory 
pile driving, and active sonar systems) can be broadband, narrowband or 
tonal, brief or prolonged (continuous or intermittent), and typically 
do not have the high peak sound pressure with raid rise/decay time that 
impulsive sounds do (ANSI, 1995; NIOSH, 1998; NMFS, 2018). The 
distinction between these two sound types is important because they 
have differing potential to cause physical effects, particularly with 
regard to hearing (e.g., Southall et al., 2007).
    Two types of pile hammers would be used on this project: impact and 
vibratory. Impact hammers operate by repeatedly dropping a heavy piston 
onto a pile to drive the pile into the substrate. Sound generated by 
impact hammers is characterized by rapid rise times and high peak 
levels, a potentially injurious combination (Hastings and Popper, 
2005). Vibratory hammers install piles by vibrating them and allowing 
the weight of the hammer to push them into the sediment. Vibratory 
hammers produce significantly less sound than impact hammers. Peak 
sound pressure levels (SPLs) may be 180 dB or greater, but are 
generally 10 to 20 dB lower than SPLs generated during impact pile 
driving of the same-sized pile (Oestman et al., 2009). Rise time is 
slower, reducing the probability and severity of injury, and sound 
energy is distributed over a greater amount of time (Nedwell and 
Edwards, 2002; Carlson, et al., 2005).
    The likely or possible impacts of the AGP's proposed activity on 
marine mammals could involve both non-acoustic and acoustic stressors. 
Potential non-acoustic stressors include the physical presence of the 
equipment and personnel; however, any impacts to marine mammals are 
expected to primarily be acoustic in nature.

Auditory Effects

    The introduction of anthropogenic noise into the aquatic 
environment from pile driving and removal is the primary means by which 
marine mammals may be harassed from AGP's specified activity. In 
general, animals exposed to natural or anthropogenic sound may 
experience physical and behavioral effects, ranging in magnitude from 
none to severe (Southall et al., 2007, 2021). Exposure to pile driving 
noise has the potential to result in auditory threshold shifts (TS) and 
behavioral reactions (e.g., avoidance, temporary cessation of foraging 
and vocalizing, changes in dive behavior). Exposure to anthropogenic 
noise can also lead to non-observable physiological responses such an 
increase in stress hormones. Additional noise in a marine mammal's 
habitat can mask acoustic cues used by marine mammals to carry out 
daily functions such as communication and predator and prey detection. 
The effects of pile driving noise on marine mammals are dependent on 
several factors, including, but not limited to, sound type (e.g., 
impulsive vs. non-impulsive), the species, age and sex class (e.g., 
adult male vs. mom with calf), duration of exposure, the distance 
between the pile and the animal, received levels, behavior at time of 
exposure, and previous history with exposure (Wartzok et al., 2004; 
Southall et al., 2007). Here we discuss physical auditory effects (TSs) 
followed by behavioral effects and potential impacts on habitat.
    NMFS defines a noise-induced TS as a change, usually an increase, 
in the threshold of audibility at a specified frequency or portion of 
an individual's hearing range above a previously established reference 
level (NMFS, 2018). The amount of threshold shift is customarily 
expressed in dB. A TS can be permanent or temporary. As described in 
NMFS (2018), there are numerous factors to consider when examining the 
consequence of TS, including, but not limited to, the signal temporal 
pattern (e.g., impulsive or non-impulsive), likelihood an individual 
would be exposed for a long enough duration or to a high enough level 
to induce a TS, the magnitude of the TS, time to recovery (seconds to 
minutes or hours to days), the frequency range of the exposure (i.e., 
spectral content), the hearing and vocalization frequency range of the 
exposed species relative to the signal's frequency spectrum (i.e., how 
animal uses sound within the frequency band of the signal; e.g., 
Kastelein et al., 2014), and the overlap between the animal and the 
source (e.g., spatial, temporal, and spectral).
    Permanent Threshold Shift (PTS)--NMFS defines PTS as a permanent, 
irreversible increase in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS 2018). Available data from 
humans and other terrestrial mammals indicate that a 40 dB threshold 
shift approximates PTS onset (Ward et al., 1958, 1959; Ward, 1960; 
Kryter et al., 1966; Miller, 1974; Ahroon et al., 1996; Henderson et 
al., 2008). PTS levels for marine mammals are estimates, as with the 
exception of a single study unintentionally inducing PTS in a harbor 
seal (Kastak et al., 2008), there are no empirical data measuring PTS 
in marine mammals largely due to the fact that, for various ethical 
reasons, experiments involving anthropogenic noise exposure at levels 
inducing PTS

[[Page 24442]]

are not typically pursued or authorized (NMFS, 2018).
    Temporary Threshold Shift (TTS)--A temporary, reversible increase 
in the threshold of audibility at a specified frequency or portion of 
an individual's hearing range above a previously established reference 
level (NMFS, 2018). Based on data from cetacean TTS measurements 
(Southall et al., 2007), a TTS of 6 dB is considered the minimum 
threshold shift clearly larger than any day-to-day or session-to-
session variation in a subject's normal hearing ability (Schlundt et 
al., 2000; Finneran et al., 2000, 2002). As described in Finneran 
(2015), marine mammal studies have shown the amount of TTS increases 
with cumulative sound exposure level (SELcum) in an accelerating 
fashion: At low exposures with lower SELcum, the amount of TTS is 
typically small and the growth curves have shallow slopes. At exposures 
with higher SELcum, the growth curves become steeper and approach 
linear relationships with the noise SEL.
    Depending on the degree (elevation of threshold in dB), duration 
(i.e., recovery time), and frequency range of TTS, and the context in 
which it is experienced, TTS can have effects on marine mammals ranging 
from discountable to serious (similar to those discussed in auditory 
masking, below). For example, a marine mammal may be able to readily 
compensate for a brief, relatively small amount of TTS in a non-
critical frequency range that takes place during a time when the animal 
is traveling through the open ocean, where ambient noise is lower and 
there are not as many competing sounds present. Alternatively, a larger 
amount and longer duration of TTS sustained during time when 
communication is critical for successful mother/calf interactions could 
have more serious impacts. We note that reduced hearing sensitivity as 
a simple function of aging has been observed in marine mammals, as well 
as humans and other taxa (Southall et al., 2007), so we can infer that 
strategies exist for coping with this condition to some degree, though 
likely not without cost.
    Currently, TTS data only exist for four species of cetaceans 
(bottlenose dolphin (Tursiops truncatus), beluga whale (Delphinapterus 
leucas), harbor porpoise, and Yangtze finless porpoise (Neophocoena 
asiaeorientalis)) and five species of pinnipeds exposed to a limited 
number of sound sources (i.e., mostly tones and octave-band noise) in 
laboratory settings (Finneran, 2015). TTS was not observed in trained 
spotted (Phoca largha) and ringed (Pusa hispida) seals exposed to 
impulsive noise at levels matching previous predictions of TTS onset 
(Reichmuth et al., 2016). In general, harbor seals and harbor porpoises 
have a lower TTS onset than other measured pinniped or cetacean species 
(Finneran, 2015). Additionally, the existing marine mammal TTS data 
come from a limited number of individuals within these species. No data 
are available on noise-induced hearing loss for mysticetes. For 
summaries of data on TTS in marine mammals or for further discussion of 
TTS onset thresholds, please see Southall et al. (2007), Finneran and 
Jenkins (2012), Finneran (2015), and table 5 in NMFS (2018).
    Installing piles requires a combination of impact pile driving and 
vibratory pile driving. For the project, these activities would not 
occur at the same time and there would likely be pauses in activities 
producing the sound during each day. Given these pauses and that many 
marine mammals are likely moving through the action area and not 
remaining for extended periods of time, the potential for TS declines.
    Behavioral Harassment--Exposure to noise from pile driving and 
removal also has the potential to behaviorally disturb marine mammals. 
Available studies show wide variation in response to underwater sound; 
therefore, it is difficult to predict specifically how any given sound 
in a particular instance might affect marine mammals perceiving the 
signal. If a marine mammal does react briefly to an underwater sound by 
changing its behavior or moving a small distance, the impacts of the 
change are unlikely to be significant to the individual, let alone the 
stock or population. However, if a sound source displaces marine 
mammals from an important feeding or breeding area for a prolonged 
period, impacts on individuals and populations could be significant 
(e.g., Lusseau and Bejder, 2007; Weilgart, 2007; NRC, 2005, Southall et 
al., 2021).
    Disturbance may result in changing durations of surfacing and 
dives, number of blows per surfacing, or moving direction and/or speed; 
reduced/increased vocal activities; changing/cessation of certain 
behavioral activities (such as socializing or feeding); visible startle 
response or aggressive behavior (such as tail/fluke slapping or jaw 
clapping); avoidance of areas where sound sources are located. 
Pinnipeds may increase their haul out time, possibly to avoid in-water 
disturbance (Thorson and Reyff, 2006). Behavioral responses to sound 
are highly variable and context-specific and any reactions depend on 
numerous intrinsic and extrinsic factors (e.g., species, state of 
maturity, experience, current activity, reproductive state, auditory 
sensitivity, time of day), as well as the interplay between factors 
(e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 
2007, 2021; Weilgart, 2007; Archer et al., 2010). Behavioral reactions 
can vary not only among individuals but also within exposures of an 
individual, depending on previous experience with a sound source, 
context, and numerous other factors (Ellison et al., 2012, Southall et 
al., 2021), and can vary depending on characteristics associated with 
the sound source (e.g., whether it is moving or stationary, number of 
sources, distance from the source). In general, pinnipeds seem more 
tolerant of, or at least habituate more quickly to, potentially 
disturbing underwater sound than do cetaceans, and generally seem to be 
less responsive to exposure to industrial sound than most cetaceans. 
For a review of studies involving marine mammal behavioral responses to 
sound, see Southall et al., 2007; Gomez et al., 2016; and Southall et 
al., 2021 reviews.
    Disruption of feeding behavior can be difficult to correlate with 
anthropogenic sound exposure, so it is usually inferred by observed 
displacement from known foraging areas, the appearance of secondary 
indicators (e.g., bubble nets or sediment plumes), or changes in dive 
behavior. As for other types of behavioral response, the frequency, 
duration, and temporal pattern of signal presentation, as well as 
differences in species sensitivity, are likely contributing factors to 
differences in response in any given circumstance (e.g., Croll et al., 
2001; Nowacek et al., 2004; Madsen et al., 2006; Yazvenko et al., 
2007). A determination of whether foraging disruptions incur fitness 
consequences would require information on estimates of the energetic 
requirements of the affected individuals and the relationship between 
prey availability, foraging effort and success, and the life history 
stage of the animal.
    Masking--Sound can disrupt behavior through masking, or interfering 
with, an animal's ability to detect, recognize, or discriminate between 
acoustic signals of interest (e.g., those used for intraspecific 
communication and social interactions, prey detection, predator 
avoidance, navigation) (Richardson et al., 1995). Masking occurs when 
the receipt of a sound is interfered with by another coincident sound 
at similar frequencies and at similar or higher intensity, and may 
occur whether the sound is natural (e.g., snapping shrimp, wind, waves, 
precipitation) or anthropogenic (e.g., pile driving, shipping, sonar, 
seismic

[[Page 24443]]

exploration) in origin. The ability of a noise source to mask 
biologically important sounds depends on the characteristics of both 
the noise source and the signal of interest (e.g., signal-to-noise 
ratio, temporal variability, direction), in relation to each other and 
to an animal's hearing abilities (e.g., sensitivity, frequency range, 
critical ratios, frequency discrimination, directional discrimination, 
age or TTS hearing loss), and existing ambient noise and propagation 
conditions. Masking of natural sounds can result when human activities 
produce high levels of background sound at frequencies important to 
marine mammals. Conversely, if the background level of underwater sound 
is high (e.g., on a day with strong wind and high waves), an 
anthropogenic sound source would not be detectable as far away as would 
be possible under quieter conditions and would itself be masked. Grays 
Harbor is home to a busy industrial port as well as large numbers small 
private vessels that transit the area on a regular basis; therefore, 
background sound levels in the bay are likely already elevated.

Marine Mammal Habitat Effects

    AGP's construction activities could have localized, temporary 
impacts on marine mammal habitat by increasing in-water SPLs and 
slightly decreasing water quality. Construction activities are of short 
duration and would likely have temporary impacts on marine mammal 
habitat through increases in underwater sound. Increased noise levels 
may affect acoustic habitat (see masking discussion above) and 
adversely affect marine mammal prey in the vicinity of the project area 
(see discussion below). During pile driving, elevated levels of 
underwater noise would ensonify the Port where both fish and mammals 
may occur and could affect foraging success.
    In-water pile driving and pile removal would also cause short-term 
effects on water quality due to increased turbidity. Local currents are 
anticipated to disburse suspended sediments produced by project 
activities at moderate to rapid rates depending on tidal stage. AGP 
would employ standard construction best management practices, thereby 
reducing any impacts. Considering the nature and duration of the 
effects, combined with the measures to reduce turbidity, the impact 
from increased turbidity levels is expected to be discountable.
    Pile installation and removal may temporarily increase turbidity 
resulting from suspended sediments. Any increases would be temporary, 
localized, and minimal. AGP must comply with state water quality 
standards during these operations by limiting the extent of turbidity 
to the immediate project area. In general, turbidity associated with 
pile installation is localized to about a 25-feet (ft) radius around 
the pile (Everitt et al., 1980). Cetaceans are not expected to enter 
the harbor and be close enough to the project pile driving areas to 
experience effects of turbidity, and any pinnipeds would likely be 
transiting the area and could avoid localized areas of turbidity. 
Therefore, the impact from increased turbidity levels is expected to be 
discountable to marine mammals. Furthermore, pile driving and removal 
at the project site would not obstruct movements or migration of marine 
mammals.

Effects on Prey

    Construction activities would produce continuous (i.e., vibratory 
pile driving) and impulsive (i.e., impact driving) sounds. Fish react 
to sounds that are especially strong and/or intermittent low-frequency 
sounds. Short duration, sharp sounds can cause overt or subtle changes 
in fish behavior and local distribution. Hastings and Popper (2005) 
identified several studies that suggest fish may relocate to avoid 
certain areas of sound energy. Additional studies have documented 
effects of pile driving on fish, although several are based on studies 
in support of large, multiyear bridge construction projects (e.g., 
Scholik and Yan, 2001, 2002; Popper and Hastings, 2009). Sound pulses 
at received levels may cause noticeable changes in behavior (Pearson et 
al., 1992; Skalski et al., 1992). SPLs of sufficient strength have been 
known to cause injury to fish and fish mortality.
    Impacts on marine mammal prey (i.e., fish or invertebrates) of the 
immediate area due to the acoustic disturbance are possible. The 
duration of fish or invertebrate avoidance or other disruption of 
behavioral patterns in this area after pile driving stops is unknown, 
but a rapid return to normal recruitment, distribution and behavior is 
anticipated. Further, significantly large areas of fish and marine 
mammal foraging habitat are available in the nearby waters.
    The duration of the construction activities is relatively short, 
with pile driving and removal activities expected to take only 105 
days. Each day, construction would occur for no more than 12 hours 
during the day and pile driving activities would be restricted to 
daylight hours. The most likely impact to fish from pile driving 
activities at the project area would be temporary behavioral avoidance 
of the area. In general, impacts to marine mammal prey species are 
expected to be minor and temporary due to the short timeframe for the 
project.
    Construction activities, in the form of increased turbidity, have 
the potential to adversely affect fish in the project area. Increased 
turbidity is expected to occur in the immediate vicinity (on the order 
of 10 ft (3 meters (m)) or less) of construction activities. However, 
suspended sediments and particulates are expected to dissipate quickly 
within a single tidal cycle. Given the limited area affected and high 
tidal dilution rates any effects on fish are expected to be minor or 
negligible. In addition, best management practices would be in effect, 
which would limit the extent of turbidity to the immediate project 
area.
    In summary, given the relatively short daily duration of sound 
associated with individual pile driving and events and the relatively 
small areas being affected, pile driving activities associated with the 
proposed action are not likely to have a permanent, adverse effect on 
any fish habitat, or populations of fish species. Thus, we conclude 
that impacts of the specified activity are not likely to have more than 
short-term adverse effects on any prey habitat or populations of prey 
species. Further, any impacts to marine mammal habitat are not expected 
to result in significant or long-term consequences for individual 
marine mammals, or to contribute to adverse impacts on their 
populations.

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
proposed for authorization through the IHA, which will inform NMFS' 
consideration of ``small numbers,'' the negligible impact 
determinations, and impacts on subsistence uses.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would primarily be by Level B harassment, as use 
of the acoustic stressors (i.e., pile driving) has the potential to 
result in disruption of behavioral patterns for individual

[[Page 24444]]

marine mammals. There is also some potential for auditory injury (Level 
A harassment) to result, primarily for high frequency species (harbor 
porpoise) and phocids (harbor seal). Auditory injury is unlikely to 
occur for other species due to PTS zone sizes. The proposed 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 proposed to be authorized for this activity. Below we 
describe how the proposed 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 proposed 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 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 160 dB (re 1 [mu]Pa) for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g., 
scientific sonar) sources. Generally speaking, Level B harassment take 
estimates based on these behavioral harassment thresholds are expected 
to include any likely takes by TTS as, in most cases, the likelihood of 
TTS occurs at distances from the source less than those at which 
behavioral harassment is likely. TTS of a sufficient degree can 
manifest as behavioral harassment, as reduced hearing sensitivity and 
the potential reduced opportunities to detect important signals 
(conspecific communication, predators, prey) may result in changes in 
behavior patterns that would not otherwise occur.
    AGP's proposed activity includes the use of continuous (vibratory 
driving and removal) and impulsive (impact pile driving) sources, and 
therefore the RMS SPL thresholds of 120 and 160 dB re 1 [mu]Pa 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). AGP's 
proposed activity includes the use of impulsive (impact pile driving) 
and non-impulsive (vibratory pile driving and removal) sources.
    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

                     Table 5--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
                                                     PTS onset acoustic thresholds * (received level)
             Hearing group              ------------------------------------------------------------------------
                                                  Impulsive                         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans...........  Cell 1: Lpk,flat: 219 dB;   Cell 2: LE,LF,24h: 199 dB.
                                          LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans...........  Cell 3: Lpk,flat: 230 dB;   Cell 4: LE,MF,24h: 198 dB.
                                          LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans..........  Cell 5: Lpk,flat: 202 dB;   Cell 6: LE,HF,24h: 173 dB.
                                          LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater).....  Cell 7: Lpk,flat: 218 dB;   Cell 8: LE,PW,24h: 201 dB.
                                          LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater)....  Cell 9: Lpk,flat: 232 dB;   Cell 10: LE,OW,24h: 219 dB.
                                          LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1 [mu]Pa2s. In this table, thresholds are abbreviated to reflect American National
  Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
  frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
  being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
  designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
  that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
  exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
  is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.


[[Page 24445]]

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 TL coefficient.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the proposed project. 
Marine mammals are expected to be affected via sound generated by the 
primary components of the project (i.e., impact pile driving, vibratory 
pile driving and removal). Additionally, vessel traffic and other 
commercial and industrial activities in the project area may contribute 
to elevated background noise levels which may mask sounds produced by 
the project.
    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
R1 = the distance of the modeled SPL from the driven 
pile, and
R2 = the distance from the driven pile of the initial 
measurement

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(free-field) environment not limited by depth or water surface, 
resulting in a 6-dB reduction in sound level for each doubling of 
distance from the source (20*log[range]). Cylindrical spreading occurs 
in an environment in which sound propagation is bounded by the water 
surface and sea bottom, resulting in a reduction of 3 dB in sound level 
for each doubling of distance from the source (10*log[range]). A 
practical spreading value of 15 is often used under conditions, such as 
the project site, where water increases with depth as the receiver 
moves away from the shoreline, resulting in an expected propagation 
environment that would lie between spherical and cylindrical spreading 
loss conditions. Practical spreading loss is assumed here.
    The intensity of pile driving sounds is greatly influenced by 
factors such as the type of piles, hammers, and the physical 
environment in which the activity takes place. In order to calculate 
the distances to the Level A harassment and the Level B harassment 
sound thresholds for the methods and piles being used in this project, 
NMFS used acoustic monitoring data from other locations to develop 
proxy source levels for the various pile types, sizes and methods. The 
project includes vibratory and impact pile installation of steel and 
vibratory removal of steel, timber piles, and concrete piles. Pile 
sizes range from 12-in to 36-in. Source levels for the various pile 
sizes and driving methods are presented in table 6. Bubble curtains 
would be employed during all impact driving, with an assumed 5 dB 
effective attenuation (Caltrans 2020).

                      Table 6--Proxy Sound Source Levels for Pile Sizes and Driving Methods
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Method and pile type                                                       Sound level at 10 m (dB rms)
-----------------------------------------------------------------
Vibratory hammer
----------------------------------------------------------------------------------------------------------------
36-inch steel piles (installation) \1\..........................                        170
30-inch steel pipe piles (installation) \2\.....................                        159
24-inch steel piles (installation and removal) \3\..............                        154
18-inch steel pipe piles (installation) \4\.....................                        158
12-inch steel H-piles (installation and removal) \5\............                        150
18-inch creosote timber piles (removal) \6\.....................                        162
16.5-inch concrete octagonal sections (removal) \6\.............                        163
----------------------------------------------------------------------------------------------------------------
Impact hammer                                                              dBrms           dBSEL          dBpeak
----------------------------------------------------------------------------------------------------------------
24-inch steel piles (single strike) \7\.........................       190 (185)       177 (172)       203 (198)
36-inch steel piles (single strike) \8\.........................       193 (188)       183 (178)       210 (205)
----------------------------------------------------------------------------------------------------------------
\1\ Laughlin 2012 as cited in WSDOT 2020.
\2\ 2023 NMFS Calculations based on data from Denes et al. 2016 (Auke Bay, Ketchikan, Kake), Edmonds Ferry
  Terminal (Laughlin 2011, 2017), Colman Dock--Seattle Ferry Terminal (Laughlin 2012), Kodiak Pier 3 (PND
  Engineers, 2015).
\3\ 2023 NMFS Calculations based on data from Naval Base Kitsap Bangor Test Pile (Navy (2012)) and EHW-2 (Navy
  (2013)), Gustavus (Miner, 2020).
\4\ Caltrans 2020.
\5\ From generic value recommended in the Caltrans 2015 summary table, as it was representative of the data and
  provided a citable data point and included projects from San Rafael, CA; Norfolk Naval Station, VA; Chevron
  Long Wharf, CA; JEB Little Creek, Norfolk, VA.
\6\ Data not available, anticipated noise levels are based on available noise levels for the vibratory removal
  of 20-inch diameter concrete piles (Naval Facilities Engineering Systems Command Southwest 2022). Noise levels
  were back-calculated to a 10 meter measurement distance assuming a 15 log transmission loss. Based on prior
  coordination with NMFS for the Johnson Pier Expansion and Dock Replacement Project IHA Request (M&N 2022) this
  data source is an acceptable surrogate for timber piles (Pers. comm. Cara Hotchkin 2023).
\7\ From Caltrans 2015, pooled and averaged from 20 to 24'' piles from Stockton WWTP, CA; Bradshaw Bridge, CA;
  Rodeo Dock, CA; Tongue Point Pier, OR; Cleer Creek WWTP, CA; SR 520 Test Pile, WA; Portland Light Rail, OR;
  Port of Coeyman, NY; Pritchard Lake, CA; Amorco Wharf, CA; 5th Street Bridge, CA; Schuyler Heim Bridge, CA;
  Tanana River, AK, NBK EHW2, WA; Crescent City, CA; Avon Wharf, CA; Orwood Bridge Replacement, CA; Tesoro
  Amorco Wharf, CA; USCG Floating Dock, CA; Norfolk, VA; Plains Terminal, CA. A 5dB attenuation applied in
  parenthesis for the use of a bubble curtain.
\8\ Caltrans 2020, unattenuated data used as reference. A 5dB attenuation applied in parenthesis for the use of
  a bubble curtain.
Note: It is assumed that noise levels during vibratory pile installation and vibratory pile removal are similar.

    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

[[Page 24446]]

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 impact or vibratory pile driving and 
removal, the optional User Spreadsheet tool predicts the distance at 
which, if a marine mammal remained at that distance for the duration of 
the activity, it would be expected to incur PTS. Inputs used for impact 
driving in the optional User Spreadsheet tool, and the resulting 
estimated isopleths, are reported below in table 7 and table 8 below.

           Table 7--User Spreadsheet Inputs for Impact Driving
------------------------------------------------------------------------
              Inputs                  36-inch impact     24-inch impact
------------------------------------------------------------------------
Spreadsheet Tab Used..............  E.1) Impact Pile Driving (STATIONARY
                                      SOURCE: Impulsive, Intermittent)
                                   -------------------------------------
Source Level (Single Strike/shot                  183                177
 SEL).............................
Weighting Factor Adjustment (kHz).                  2                  2
Strikes per pile..................                600                500
Piles Per day.....................                  4                  4
Propagation (xLogR)...............                 15                 15
Distance of source level                           10                 10
 measurement (meters).............
------------------------------------------------------------------------


                      Table 8--Calculated Level A Harassment Zones, Impact Installation (m)
----------------------------------------------------------------------------------------------------------------
                                                                            Level A threshold
                                                        --------------------------------------------------------
                       Pile type                          High- frequency
                                                          cetaceans 155 dB   Phocid pinnipeds  Otariid pinnipeds
                                                               SELcum         185 dB SELcum      203 db SELcum
----------------------------------------------------------------------------------------------------------------
36-inch steel piles (installation).....................                990                445                 33
24-inch steel piles, permanent (installation)..........                349                157                 12
----------------------------------------------------------------------------------------------------------------

    Table 9 shows the User Spreadsheet Inputs for vibratory driving and 
the resulting Level A harassment zones are shown in table 10. 
Calculated Level B harassment isopleths are found in table 11.

                                                 Table 9--User Spreadsheet Inputs for Vibratory Driving
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                     12-inch
                                                             24-to-30-in  24-in steel   24-in steel                 steel H-       18-in      16.5-inch
                    Inputs                      36-in steel     steel        perm.         temp.     18-in steel      piles        timber      concrete
                                                 (install)    (install)    (install)   (install and   (install)   (install and   (removal)    (removal)
                                                                                         removal)                   removal)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tab Used......................................                     A.1) Vibratory Pile Driving (STATIONARY: Non-impulsive, Continuous)
                                               ---------------------------------------------------------------------------------------------------------
Source Level (RMS)............................          170          159          154           154          158           150          162          163
                                               ---------------------------------------------------------------------------------------------------------
Weighting Factor Adjustment (kHz).............                                                     2.5
                                               ---------------------------------------------------------------------------------------------------------
Duration (minutes)............................          120           60           90            30           30            30           30           60
Piles per day.................................            4            6            4             8            6             3           10            8
                                               ---------------------------------------------------------------------------------------------------------
Propagation (xLogR)...........................                                                     15
                                               ---------------------------------------------------------------------------------------------------------
Distance of source level (m)..................                                                     10
--------------------------------------------------------------------------------------------------------------------------------------------------------


              Table 10--Calculated Level A Harassment Zones, Vibratory Installation and Removal (m)
----------------------------------------------------------------------------------------------------------------
                                                                            Level A threshold
                                                        --------------------------------------------------------
                       Pile type                           High-frequency
                                                          cetaceans 173 dB   Phocid pinnipeds  Otariid pinnipeds
                                                               SELcum         201 dB SELcum      219 dB SELcum
----------------------------------------------------------------------------------------------------------------
36-inch steel piles (installation).....................                161                 67                  5
24-to-30-inch steel pipe piles (installation)..........                 25                 10                  1
24-inch steel piles, permanent (installation)..........                 12                  5                  1
24-inch steel piles, temporary (installation and                         9                  4                  1
 removal)..............................................
18-inch steel pipe piles (installation)................                 13                  6                  1
12-inch steel H-piles (installation and removal).......                  3                  1                  1
18-inch creosote timber piles (removal)................                 35                 15                  1

[[Page 24447]]

 
16.5-inch concrete octagonal sections (removal)........                 55                 23                  2
----------------------------------------------------------------------------------------------------------------


  Table 11--Level B Harassment Zones, Vibratory and Impact Driving (m)
------------------------------------------------------------------------
                                                       Level B threshold
                      Pile type                            all marine
                                                       mammals 120 dBrms
------------------------------------------------------------------------
                            120 dB threshold
------------------------------------------------------------------------
36-inch steel piles (installation)...................             21,545
24-to-30-inch steel pipe piles (installation)........              3,981
24-inch steel piles (installation and removal).......              1,847
18-inch steel pipe piles (installation)..............              3,415
12-inch steel H-piles (installation and removal).....              1,000
18-inch creosote timber piles (removal)..............              6,310
16.5-inch concrete octagonal sections (removal)......              7,365
------------------------------------------------------------------------
                            160 dB threshold
------------------------------------------------------------------------
36-inch steel piles (Installation)...................                736
24-inch steel piles, permanent (Installation)........                465
------------------------------------------------------------------------

Marine Mammal Occurrence and Take Estimation

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information which 
will inform the take calculations. The primary source for density 
estimates is from the Navy Marine Species Density Database (NMSDD) 
Phase III for the Northwest Training and Testing Study Area (Navy, 
2019) although density calculated from other aerial surveys was used 
for harbor seal. These density estimates will be used to calculate take 
due to the lack of site-specific data that is available.
    To quantitatively assess potential exposure of marine mammals to 
noise levels from pile driving over the NMFS threshold guidance, the 
following equation was first used to provide an estimate of potential 
exposures within estimated harassment zones:

Exposure estimate = N x Level B harassment zone (km\2\) x maximum days 
of pile driving

where

N = density estimate (animals per km\2\) used for each species.

Harbor Seal

    There are no harbor seal density estimates for Grays Harbor, but 
the Navy Marine Species Density Database (NMSDD 2020) estimates the 
density of harbor seals in the waters offshore of Grays Harbor as 
0.3424 animals per square kilometer. However, harbor seals are 
anticipated to be more common within Grays Harbor than within offshore 
areas. Therefore, this density estimate may underestimate actual 
densities for the project site.
    Two aerial surveys of Grays Harbor were conducted in June of 2014. 
The average count was multiplied by a regional correction factor of 
1.43 (Huber et al., 2001) to yield the estimated harbor seal abundance. 
A correction factor was used because aerial surveys of harbor seals on 
land only produce a minimum assessment of the population and animals in 
the water must be accounted for to estimate total abundance. The 
average survey count (7,495 seals/survey) was used to calculate density 
by dividing by the area of Grays Harbor (243 km\2\) resulting in a 
calculated density of 30.85 animals per km\2\). This value was used to 
calculate estimated take by both Level A harassment and Level B 
harassment during the driving of the various types of piles for the 
Project. Estimated takes by Level B harassment are shown in table 12 
and takes by Level A harassment are shown in table 13.
    The largest Level A harassment zone for phocid pinnipeds extends 
from 157 to 445 m from the source during impact driving. AGP and NMFS 
agreed on the implementation of a 100 m shutdown zone in order to shut 
down for those animals closest to the pile driving activity but allow 
for pile driving to continue for animals that are beyond 100 m (see 
Proposed Mitigation section). AGP is confident they can complete work 
in an efficient manner with the occurrence of harbor seals in the 
project area. AGP has requested authorization of 18,830 takes of harbor 
seals by Level B harassment as well as 73 harbor seal takes by Level A 
harassment. NMFS concurs with the requests and is proposing to 
authorize take of harbor seals at these levels.

                                        Table 12--Calculated Take Estimate of Harbor Seals by Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Harbor seal    Days of      Level B      Shutdown     Shutdown     Level B
                 Pile type                    Installation/removal method   density per      pile         area         zone         area         take
                                                                               km\2\       driving      (km\2\)      distance     (km\2\)      estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-inch steel piles (installation).........  Vibratory....................        30.85           24         10.2           70         0.03     7,529.87
36-inch steel piles (installation).........  Impact to proof..............        30.85            6         1.07          100         0.05       188.80
24-to-30-inch steel pipe piles               Vibratory....................         30.8           18         4.95           10        0.009     2,739.29
 (installation).

[[Page 24448]]

 
24-inch steel piles, permanent               Vibratory....................        30.85           10         2.72           10        0.004       804.37
 (installation).
24-inch steel piles, permanent               Impact to proof..............        30.85            2         0.46          100         0.05        30.36
 (installation).
24-inch steel piles, temporary               Vibratory....................        30.85           12         2.72           10        0.004     1,005.46
 (installation and removal).
18-inch steel pipe piles (installation)....  Vibratory....................        30.85            6          4.3           10        0.009       794.26
12-inch steel H-piles (installation and      Vibratory....................        30.85            6          1.7           10        0.004       313.93
 removal).
18-inch creosote timber piles (removal)....  Vibratory....................        30.85           12          7.4           15        0.014     2,734.30
16.5-inch concrete octagonal sections        Vibratory....................        30.85            9         7.97           25        0.011     2,209.82
 (removal).
                                            ------------------------------------------------------------------------------------------------------------
    Total..................................  .............................  ...........  ...........  ...........  ...........  ...........       18,350
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                        Table 13--Calculated Take Estimate of Harbor Seals by Level A Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Harbor seal    Days of      Level A      Shutdown     Shutdown     Level A
                 Pile type                    installation/removal method   density per      pile         area         zone         area         take
                                                                               km\2\       driving      (km\2\)      distance     (km\2\)      estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-inch steel piles (installation).........  Vibratory....................        30.85           24         0.03           70         0.03         0.00
36-inch steel piles (installation).........  Impact to proof..............        30.85            6         0.43          100         0.05        70.34
24-to-30-inch steel pipe piles               Vibratory....................         30.8           18        0.009           10        0.009         0.00
 (installation).
24-inch steel piles, permanent               Vibratory....................        30.85           10        0.002           10        0.004         0.00
 (installation).
24-inch steel piles, permanent               Impact to proof..............        30.85            2        0.084          100         0.05         2.52
 (installation).
24-inch steel piles, temporary               Vibratory....................        30.85           12       0.0018           10        0.004         0.00
 (installation and removal).
18-inch steel pipe piles (installation)....  Vibratory....................        30.85            6        0.005           10        0.009         0.00
12-inch steel H-piles (installation and      Vibratory....................        30.85            6       0.0009           10        0.004         0.00
 removal).
18-inch creosote timber piles (removal)....  Vibratory....................        30.85           12        0.014           15        0.014         0.00
16.5-inch concrete octagonal sections        Vibratory....................        30.85            9         0.01           25        0.011         0.00
 (removal).
                                            ------------------------------------------------------------------------------------------------------------
    Total..................................  .............................  ...........  ...........  ...........  ...........  ...........           73
--------------------------------------------------------------------------------------------------------------------------------------------------------

California Sea Lion

    The NMSDD estimates the density of California sea lions in the 
waters offshore of Grays Harbor as 0.0288, 0.5573 and 0.66493 animals 
per km\2\ in summer, fall and winter, respectively (Navy, 2019). AGP 
conservatively utilized the higher winter density value to calculate 
estimated take. Based on this density estimate, the number of 
California sea lions that may be taken by Level B harassment is 
presented in table 14. Take by Level A harassment is not anticipated 
since the nearest documented California sea lion haulout sites are at 
the Westport Docks, approximately 13 miles west of the Project site 
near the entrance to Grays Harbor (Jeffries et al., 2015), and another 
haulout observed in 1997 referred to as the mid-harbor flats located 
approximately 5.65 miles west of the Project site (WDFW, 2022). 
Additionally, the largest Level A harassment zone is 33 m, with all the 
other zones for both impact and vibratory driving no more than 12 m.
    AGP has requested and NMFS is proposing to authorize 387 California 
sea lion takes by Level B harassment as shown in table 14.

                                          Table 14--Level B Harassment Take Estimates for California Sea Lions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             California
                                                                              sea lion     Days of      Level B      Shutdown     Shutdown     Level B
                 Pile type                    Installation/removal method   density per      pile         area         zone         area         take
                                                                               km\2\       driving      (km\2\)      distance     (km\2\)      estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-inch steel piles (installation).........  Vibratory....................       0.6493           24         10.2           10         0.03       158.48
36-inch steel piles (installation).........  Impact to proof..............       0.6493            6         1.07           35        0.016         4.11
24-to-30-inch steel pipe piles               Vibratory....................       0.6493           18         4.95           10        0.009        57.75
 (installation).
24-inch steel piles, permanent               Vibratory....................       0.6493           10         2.72           10        0.004        16.93
 (installation).
24-inch steel piles, permanent               Impact to proof..............       0.6493            2         0.46           15        0.006         0.71
 (installation).
24-inch steel piles, temporary               Vibratory....................       0.6493           12         2.72           10        0.004        21.16
 (installation and removal).
18-inch steel pipe piles (installation)....  Vibratory....................       0.6493            6          4.3           10        0.009        16.72
12-inch steel H-piles (installation and      Vibratory....................       0.6493            6          1.7           10        0.004         6.61
 removal).
18-inch creosote timber piles (removal)....  Vibratory....................       0.6493           12          7.4           10        0.009        57.59
16.5-inch concrete octagonal sections        Vibratory....................       0.6493            9         7.97           10        0.004        46.55
 (removal).
                                            ------------------------------------------------------------------------------------------------------------
    Total..................................  .............................  ...........  ...........  ...........  ...........  ...........          387
--------------------------------------------------------------------------------------------------------------------------------------------------------

Steller Sea Lion

    The NMSDD estimates the density of Steller sea lions in the waters 
offshore of Grays Harbor as 0.1993 animals per km\2\ in the summer, 
0.1678 animals per km\2\ in the winter/spring, and 0.1390 animals per 
km\2\ in the fall (Navy, 2020). The summer density estimate of 0.1993 
per km\2\ has been used as a conservative surrogate for Steller sea 
lion density within Grays Harbor.
    WDFW Priority Habitat and Species Data does not indicate any 
observances of Steller sea lions in Grays Harbor (WDFW, 2022). The 
nearest documented Steller sea lion haulout sites to the Project site 
are at Split Rock, 35 miles

[[Page 24449]]

north of the entrance to Grays Harbor, and at the mouth of the Columbia 
River, 46 miles south of the entrance to Grays Harbor (Jeffries et al., 
2000). A few Steller sea lions may haul out on buoys near the Westport 
marina, located 13 miles west of the Project site, or at Westport 
docks, similar to California sea lions. Given that the Level A 
harassment zone varies from one (1) to five (5) meters during vibratory 
pile installation and 12 to 33 meters during impact installation, in 
addition to their uncommon appearances in Grays Harbor, no take by 
Level A harassment is anticipated or proposed by NMFS.
    AGP has requested and NMFS is proposing to authorize 119 Steller 
sea lion takes by Level B harassment as shown in table 15.

                                            Table 15--Level B Harassment Take Estimates for Steller Sea Lions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                            Stellar sea
                                                                                lion       Days of      Level B      Shutdown     Shutdown     Level B
                 Pile type                    Installation/removal method   density per      pile         area         zone         area         take
                                                                               km\2\       driving      (km\2\)      distance     (km\2\)      estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-inch steel piles (installation).........  Vibratory....................       0.1993           24         10.2           10         0.03        48.65
36-inch steel piles (installation).........  Impact to proof..............       0.1993            6         1.07           35        0.016         1.26
24-to-30-inch steel pipe piles               Vibratory....................       0.1993           18         4.95           10        0.009        17.73
 (installation).
24-inch steel piles, permanent               Vibratory....................       0.1993           10         2.72           10        0.004         5.20
 (installation).
24-inch steel piles, permanent               Impact to proof..............       0.1993            2         0.46           15        0.006         0.22
 (installation).
24-inch steel piles, temporary               Vibratory....................       0.1993           12         2.72           10        0.004         6.50
 (installation and removal).
18-inch steel pipe piles (installation)....  Vibratory....................       0.1993            6          4.3           10        0.009         5.13
12-inch steel H-piles (installation and      Vibratory....................       0.1993            6          1.7           10        0.004         2.03
 removal).
18-inch creosote timber piles (removal)....  Vibratory....................       0.1993           12          7.4           10        0.009        17.68
16.5-inch concrete octagonal sections        Vibratory....................       0.1993            9         7.97           10        0.004        14.29
 (removal).
                                            ------------------------------------------------------------------------------------------------------------
    Total..................................  .............................  ...........  ...........  ...........  ...........  ...........          119
--------------------------------------------------------------------------------------------------------------------------------------------------------

Harbor Porpoise

    The Navy has estimated that density of harbor porpoises in the 
waters offshore of Grays Harbor is 0.467 animals per km\2\ (Navy, 
2019). AGP acknowledges that this value may be an overestimate since it 
is based on offshore observations. However, lacking additional survey 
or anecdotal evidence, this NMSDD value is used as a conservative 
estimate for the number of harbor porpoises that are expected to be 
within Grays Harbor. Estimated take by Level B harassment is shown in 
table 16.
    During impact pile driving, the Level A harassment isopleths range 
from 349 to 990 m for high-frequency cetaceans and up to 161 m during 
vibratory driving. AGP has proposed to implement a maximum of 100-m 
shutdown zone. This leaves large areas where take of harbor porpoises 
by Level A harassment could occur. It would be challenging for 
protected species observers to effectively monitor out to the full 
extent of these zones given the cryptic nature of harbor porpoises. 
Therefore, take was estimated using porpoise density multiplied by the 
area of the Level A harassment zone beyond 100 m (in cases where the 
Level A harassment zone exceeded the shutdown zone) multiplied by the 
number of driving days as shown in table 17.
    AGP has requested and NMFS is proposing to authorize 277 harbor 
porpoise takes by Level B harassment and 5 harbor porpoises by Level A 
harassment.

                                       Table 16--Calculated Take Estimate of Harbor Porpoise by Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Harbor
                                                                              porpoise     Days of      Level B      Shutdown     Shutdown     Level B
                 Pile type                    Installation/removal method   density per      pile         area         zone         area         take
                                                                               km\2\       driving      (km\2\)      distance     (km\2\)      estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-inch steel piles (installation).........  Vibratory....................        0.467           24         10.2          100         0.05       113.76
36-inch steel piles (installation).........  Impact to proof..............        0.467            6         1.07          100         0.05         2.86
24-to-30-inch steel pipe piles               Vibratory....................        0.467           18         4.95           25        0.023        41.42
 (installation).
24-inch steel piles, permanent               Vibratory....................        0.467           10         2.72           10        0.004        12.18
 (installation).
24-inch steel piles, permanent               Impact to proof..............        0.467            2         0.46          100         0.05         0.46
 (installation).
24-inch steel piles, temporary               Vibratory....................        0.467           12         2.72           10        0.004        15.22
 (installation and removal).
18-inch steel pipe piles (installation)....  Vibratory....................        0.467            6          4.3           15        0.014        12.01
12-inch steel H-piles (installation and      Vibratory....................        0.467            6          1.7           10        0.004         4.75
 removal).
18-inch creosote timber piles (removal)....  Vibratory....................        0.467           12          7.4           35        0.034        41.28
16.5-inch concrete octagonal sections        Vibratory....................        0.467            9         7.97           55        0.025        33.39
 (removal).
                                            ------------------------------------------------------------------------------------------------------------
    Total..................................  .............................  ...........  ...........  ...........  ...........  ...........          277
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                       Table 17--Calculated Take Estimate of Harbor Porpoise by Level A Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Harbor
                                                                              porpoise     Days of      Level A      Shutdown     Shutdown     Level A
                 Pile type                    Installation/removal method   density per      pile         area         zone         area         take
                                                                               km\2\       driving      (km\2\)      distance     (km\2\)      estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-inch steel piles (installation).........  Vibratory....................        0.467           24        0.086          100         0.05         0.40
36-inch steel piles (installation).........  Impact to proof..............        0.467            6         1.64          100         0.05         4.46
24-to-30-inch steel pipe piles               Vibratory....................        0.467           18        0.023           25        0.023         0.00
 (installation).
24-inch steel piles, permanent               Vibratory....................        0.467           10        0.005           10        0.004         0.00
 (installation).
24-inch steel piles, permanent               Impact to proof..............        0.467            2         0.28          100         0.05         0.26
 (installation).
24-inch steel piles, temporary               Vibratory....................        0.467           12        0.004           10        0.004         0.00
 (installation and removal).

[[Page 24450]]

 
18-inch steel pipe piles (installation)....  Vibratory....................        0.467            6        0.012           15        0.014         0.00
12-inch steel H-piles (installation and      Vibratory....................        0.467            6        0.001           10        0.004         0.00
 removal).
18-inch creosote timber piles (removal)....  Vibratory....................        0.467           12        0.034           35        0.034         0.00
16.5-inch concrete octagonal sections        Vibratory....................        0.467            9        0.025           55        0.025         0.00
 (removal).
                                            ------------------------------------------------------------------------------------------------------------
    Total..................................  .............................  ...........  ...........  ...........  ...........  ...........            5
--------------------------------------------------------------------------------------------------------------------------------------------------------


                Table 18--Estimated Take by Level A and Level B Harassment, by Species and Stock
----------------------------------------------------------------------------------------------------------------
                                                                                                       Proposed
                                                        Stock                              Total       take as
          Common name                   Stock         abundance    Level A    Level B     proposed    percentage
                                                                                            take       of stock
----------------------------------------------------------------------------------------------------------------
Harbor porpoise................  Northern Oregon/         22,074          5        277          282          1.3
                                  Washington Coast.
Steller sea lion...............  Eastern U.S.......       36,308  .........        119          119          0.3
California sea lion............  U.S...............      257,606  .........        387          387          0.2
Harbor seal....................  OR/WA coast stock.   \a\ 24,731         73     18,350       18,423         74.5
----------------------------------------------------------------------------------------------------------------
\a\ There is no current estimate of abundance available for this stock. Value presented is the most recent
  available and based on 1999 data.

Proposed 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.
    Pre-Activity Monitoring--Prior to the start of daily in-water 
construction activity, or whenever a break in pile driving/removal of 
30 minutes or longer occurs, PSOs would observe the shutdown and 
monitoring zones for a period of 30 minutes. The shutdown zone would be 
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 zone, a soft-start cannot proceed until the animal 
has left the zone or has not been observed for 15 minutes. If the 
monitoring zone has been observed for 30 minutes and marine mammals are 
not present within the zone, soft-start procedures can commence and 
work can continue. Pre-start clearance monitoring must be conducted 
during periods of visibility sufficient for the lead PSO to determine 
that the shutdown zones indicated in Table 19 are clear of marine 
mammals. Pile driving may commence following 30 minutes of observation 
when the determination is made that the shutdown zones are clear of 
marine mammals. If work ceases for more than 30 minutes, the pre-
activity monitoring of both the monitoring zone and shutdown zone would 
commence.
    Implementation of Shutdown Zones for Level A Harassment--For all 
pile driving/removal activities, AGP would implement shutdowns within 
designated zones. The purpose of a shutdown zone is generally to define 
an area within which shutdown of activity would occur upon sighting of 
a marine mammal (or in anticipation of an animal entering the defined 
area). Implementation of shutdowns would be used to avoid or minimize 
takes by Level A harassment from vibratory and impact pile driving for 
all four species for which take may occur. Shutdown zones would be 
based upon the Level A harassment isopleth for each pile size/type and 
driving method where applicable. However, a maximum shutdown zone of 
100 m was requested by AGP and is being proposed by NMFS. This is 
anticipated to reduce Level A harassment exposures without resulting in 
a substantial risk to the project schedule that could occur if marine 
mammals repeatedly enter into larger shutdown zones.
    A minimum shutdown zone of 10 m would be required for all in-water 
construction activities to avoid physical interaction with marine 
mammals. Proposed shutdown zones for each activity type are shown in 
table 19.

[[Page 24451]]



                        Table 19--Shutdown Zones During Pile Installation and Removal (m)
----------------------------------------------------------------------------------------------------------------
                                                                   Shutdown zone
                                                 ------------------------------------------------     Level B
                    Pile type                          High-                                        harassment
                                                     frequency        Phocid          Otariid          zone
                                                     cetaceans       pinnipeds       pinnipeds
----------------------------------------------------------------------------------------------------------------
                                                     Impact
----------------------------------------------------------------------------------------------------------------
36-inch steel piles (installation)..............             100             100              35             740
24-inch steel piles, permanent (installation)...             100             100              15             465
----------------------------------------------------------------------------------------------------------------
                                                    Vibratory
----------------------------------------------------------------------------------------------------------------
36-inch steel piles (installation)..............             100              70              10          21,550
24-to-30-inch steel pipe piles (installation)...              25              10              10           3,985
24-inch steel piles, permanent (installation)...              15              10              10           1,850
24-inch steel piles, temporary (installation and              10              10              10           1,850
 removal).......................................
18-inch steel pipe piles (installation).........              15              10              10           3,415
12-inch steel H-piles (installation and removal)              10              10              10           1,000
18-inch creosote timber piles (removal).........              35              15              10           6,310
16.5-inch concrete octagonal sections (removal).              55              25              10           7,365
----------------------------------------------------------------------------------------------------------------

    All marine mammals would be monitored in the Level B harassment 
zones and throughout the area as far as visual monitoring can take 
place. If a marine mammal enters the Level B harassment zone, in-water 
activities would continue and protected Species Observers (PSOs) would 
document the animal's presence within the estimated harassment zone.
    If a species for which authorization has not been granted, or a 
species which has been granted but the authorized takes are met, is 
observed approaching or within the Level B harassment zone, pile 
driving activities will be shut down immediately. Activities will not 
resume until the animal has been confirmed to have left the area or 15 
minutes has elapsed with no sighting of the animal.
    Soft Start--The use of soft-start procedures are believed to 
provide additional protection to marine mammals by providing warning 
and/or giving marine mammals a chance to leave the area prior to the 
hammer operating at full capacity. For impact pile driving, contractors 
would be required to provide an initial set of strikes from the hammer 
at reduced energy, with each strike followed by a 30-second waiting 
period. This procedure would be conducted a total of three times before 
impact pile driving begins. Soft start would 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. 
Soft start is not required during vibratory pile driving and removal 
activities.
    Bubble Curtain--A bubble curtain would be employed during impact 
installation or proofing of steel piles. A noise attenuation device 
would not be required during vibratory pile driving. If a bubble 
curtain or similar measure is used, it would distribute air bubbles 
around 100 percent of the piling perimeter for the full depth of the 
water column. Any other attenuation measure would be required to 
provide 100 percent coverage in the water column for the full depth of 
the pile. The lowest bubble ring would be in contact with the mudline 
for the full circumference of the ring. The weights attached to the 
bottom ring would ensure 100 percent mudline contact. No parts of the 
ring or other objects would prevent full mudline contact. Air flow to 
the bubblers must be balanced around the circumference of the pile.
    Based on our evaluation of the applicant's proposed measures, NMFS 
has preliminarily determined that the proposed 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.

Proposed 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 activity; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
     Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Visual Monitoring

    Monitoring shall be conducted by NMFS-approved observers in

[[Page 24452]]

accordance with sections 13.1 and 13.2 of the application. Trained 
observers shall be placed from the best vantage point(s) practicable to 
monitor for marine mammals and implement shutdown or delay procedures 
when applicable through communication with the equipment operator. 
Observer training must be provided prior to project start, and shall 
include instruction on species identification (sufficient to 
distinguish the species in the project area), description and 
categorization of observed behaviors and interpretation of behaviors 
that may be construed as being reactions to the specified activity, 
proper completion of data forms, and other basic components of 
biological monitoring, including tracking of observed animals or groups 
of animals such that repeat sound exposures may be attributed to 
individuals (to the extent possible).
    Monitoring would be conducted 30 minutes before, during, and 30 
minutes after pile driving/removal activities. In addition, observers 
shall record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from piles being driven or removed. Pile driving/
removal 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.
    A minimum of three PSOs would be on duty during all in-water pile 
driving activities. One observer will be stationed on the existing dock 
or similar location to monitor the Level A harassment zones, and two 
other observers will be stationed throughout the Level B harassment 
zones where best line of sight views would provide most complete 
coverage of the zone. PSOs would monitor for marine mammals entering 
the harassment zones; the position(s) may vary based on construction 
activity and location of piles or equipment.
    PSOs would scan the waters using binoculars and would use a 
handheld range-finder device to verify the distance to each sighting 
from the project site. All PSOs would be trained in marine mammal 
identification and behaviors and are required to have no other project-
related tasks while conducting monitoring. In addition, monitoring 
would be conducted by qualified observers, who would be placed at the 
best vantage point(s) practicable to monitor for marine mammals and 
implement shutdown/delay procedures when applicable by calling for the 
shutdown to the hammer operator via a radio. AGP would adhere to the 
following observer qualifications:
    (i) PSOs must be independent of the activity contractor (for 
example, employed by a subcontractor) and have no other assigned tasks 
during monitoring periods.
    (ii) 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.
    (iii) Other PSOs may substitute other relevant experience, 
education (degree in biological science or related field), or training 
for prior experience performing the duties of a PSO during construction 
activity pursuant to a NMFS-issued incidental take authorization.
    (iv) Where a team of three or more PSOs is required, a lead 
observer or monitoring coordinator must be designated. The lead 
observer must have prior experience performing the duties of a PSO 
during construction activity pursuant to a NMFS-issued incidental take 
authorization.
    (v) PSOs must be approved by NMFS prior to beginning any activity 
subject to this IHA.
    Additional standard observer qualifications include:
     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 and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.

Reporting

    A draft marine mammal monitoring report would be submitted to NMFS 
within 90 days after the completion of pile driving and removal 
activities. It would 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 the number and type of piles driven or 
removed and by what method (i.e., impact driving) and the total 
equipment duration for cutting for each pile or total number of strikes 
for each pile (impact driving).
     PSO locations during marine mammal monitoring.
     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.
     Upon observation of a marine mammal, the following 
information: 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 bearing of each 
marine mammal observed relative to the pile being driven for each 
sighting (if pile driving was occurring at time of sighting); Estimated 
number of animals (min/max/best estimate); Estimated number of animals 
by cohort (adults, juveniles, neonates, group composition, etc.); 
Animal's closest point of approach and estimated time spent within the 
harassment zone; and 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.
     Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific 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 
final report would constitute the final report. If comments are 
received, a final report addressing NMFS comments must be submitted 
within 30 days after receipt of comments.

[[Page 24453]]

Reporting Injured or Dead Marine Mammals

    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury, serious injury or mortality, AGP would 
immediately cease the specified activities and report the incident to 
the Office of Protected Resources, NMFS, and the West Coast Region 
regional stranding coordinator. The report would include the following 
information:
     Description of the incident;
     Environmental conditions (e.g., Beaufort sea state, 
visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities would not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS would work with AGP to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. AGP would not be able to 
resume their activities until notified by NMFS.
    In the event that the AGP discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (e.g., in less than 
a moderate state of decomposition as described in the next paragraph), 
AGP would immediately report the incident to the Office of Protected 
Resources ([email protected]), NMFS and to the West 
Coast Region regional stranding coordinator as soon as feasible. The 
report would include the same information identified in the paragraph 
above. Activities would be able to continue while NMFS reviews the 
circumstances of the incident. NMFS would work with AGP to determine 
whether modifications in the activities are appropriate.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any 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).
    To avoid repetition, the majority of our analysis applies to all 
the species listed in table 18, given that many of the anticipated 
effects of this project on different marine mammal stocks are expected 
to be relatively similar in nature. Where there are meaningful 
differences between species or stocks, or groups of species, in 
anticipated individual responses to activities, impact of expected take 
on the population due to differences in population status, or impacts 
on habitat, they are described independently in the analysis below.
    Pile driving and removal activities associated with the project as 
outlined previously, have the potential to disturb or displace marine 
mammals. Specifically, the specified activities may result in take, in 
the form of Level A harassment and Level B harassment from underwater 
sounds generated from pile driving and removal. Potential takes could 
occur if individuals of these species are present in zones ensonified 
above the thresholds for Level A or Level B harassment identified above 
when these activities are underway.
    Take by Level A and Level B harassment would be due to potential 
behavioral disturbance, TTS, and PTS. No serious injury or mortality is 
anticipated or proposed for authorization given the nature of the 
activity and measures designed to minimize the possibility of injury to 
marine mammals. Take by Level A harassment is only anticipated for 
harbor porpoise and harbor seal. The potential for harassment is 
minimized through the construction method and the implementation of the 
planned mitigation measures (see Proposed Mitigation section).
    Based on reports in the literature as well as monitoring from other 
similar activities, behavioral disturbance (i.e., Level B harassment) 
would likely be limited to reactions such as increased swimming speeds, 
increased surfacing time, or decreased foraging (if such activity were 
occurring) (e.g., Thorson and Reyff, 2006; HDR, Inc., 2012; Lerma, 
2014). Most likely for pile driving, individuals would simply move away 
from the sound source and be temporarily displaced from the areas of 
pile driving, although even this reaction has been observed primarily 
only in association with impact pile driving. The pile driving 
activities analyzed here are similar to, or less impactful than, 
numerous other construction activities conducted in Washington, which 
have taken place with no observed severe responses of any individuals 
or known long-term adverse consequences. Level B harassment would be 
reduced to the level of least practicable adverse impact through use of 
mitigation measures described herein and, if sound produced by project 
activities is sufficiently disturbing, animals are likely to simply 
avoid the area while the activity is occurring. While vibratory driving 
associated with the proposed project may produce sound at distances of 
many kilometers from the project site, thus overlapping with some 
likely less-disturbed habitat, the project site itself is located in a 
busy harbor and the majority of sound fields produced by the specified 
activities are close to the harbor. Animals disturbed by project sound 
would be expected to avoid the area and use nearby higher-quality 
habitats.
    In addition to the expected effects resulting from authorized Level 
B harassment, we anticipate that harbor porpoises and harbor seals may 
sustain some limited Level A harassment in the form of auditory injury. 
However, animals in these locations that experience PTS would likely 
only receive slight PTS, i.e., minor degradation of hearing 
capabilities within regions of hearing that align most completely with 
the energy produced by pile driving, i.e., the low-frequency region 
below 2 kHz, not severe hearing impairment or impairment in the regions 
of greatest hearing sensitivity. If hearing impairment occurs, it is 
most likely that the affected animal would

[[Page 24454]]

lose a few decibels in its hearing sensitivity, which in most cases is 
not likely to meaningfully affect its ability to forage and communicate 
with conspecifics. As described above, we expect that marine mammals 
would be likely to move away from a sound source that represents an 
aversive stimulus, especially at levels that would be expected to 
result in PTS, given sufficient notice through use of soft start.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat. The project activities 
would not modify existing marine mammal habitat for a significant 
amount of time. The activities may cause some fish or invertebrates 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, the 
relatively small area of the habitat that may be affected, and the 
availability of nearby habitat of similar or higher value, the impacts 
to marine mammal habitat are not expected to cause significant or long-
term negative consequences. While there are haulouts for pinnipeds in 
the area, these locations are some distance from the actual project 
site. According to WDFW's atlas of seal and sea lion haulout sites 
(Jeffries et al., 2000), all haulouts in Grays Harbor are associated 
with tidal flats and at high tide it is assumed that these animals are 
foraging elsewhere in the estuary. The nearest documented harbor seal 
haulout site to the Project site is a low-tide haulout located 6 miles 
to the west of the project site. The nearest documented California sea 
lion haulout sites to the Project site are at the Westport Docks, 
approximately 13 miles west of the Project site near the entrance to 
Grays Harbor (Jeffries et al., 2015), and another haulout observed in 
1997 referred to as the mid-harbor flats located approximately 5.65 
miles west of the Project site (WDFW, 2022). The nearest documented 
Steller sea lion haulout sites to the Project site are at Split Rock, 
35 miles north of the entrance to Grays Harbor, and at the mouth of the 
Columbia River, 46 miles south of the entrance to Grays Harbor 
(Jeffries et al., 2000). A few Steller sea lions may haul out on buoys 
near the Westport marina, located 13 miles west of the Project site, or 
at Westport docks, similar to California sea lions. While repeated 
exposures of individuals to this pile driving activity could cause 
limited Level A harassment in harbor seals and Level B harassment in 
seals and sea lions, they are unlikely to considerably disrupt foraging 
behavior or result in significant decrease in fitness, reproduction, or 
survival for the affected individuals.
    In summary and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect any of the species 
or stocks through effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized;
     Any Level A harassment exposures (i.e., to harbor porpoise 
and harbor seals, only) are anticipated to result in slight PTS (i.e., 
of a few decibels), within the lower frequencies associated with pile 
driving;
     The anticipated incidents of Level B harassment would 
consist of, at worst, temporary modifications in behavior that would 
not result in fitness impacts to individuals;
     The ensonifed areas from the project is very small 
relative to the overall habitat ranges of all species and stocks;
     Repeated exposures of pinnipeds to this pile driving 
activity could cause slight Level A harassment in seals and Level B 
harassment in seals and sea lion species, but are unlikely to 
considerably disrupt foraging behavior or result in significant 
decrease in fitness, reproduction, or survival for the affected 
individuals. In all, there would be no adverse impacts to the stocks as 
a whole; and
     The proposed mitigation measures are expected to reduce 
the effects of the specified activity to the level of least practicable 
adverse impact.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
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 may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    Table 18 demonstrates the number of instances in which individuals 
of a given species could be exposed to received noise levels that could 
cause take of marine mammals. Our analysis shows that less than 2 
percent of all but one stock could be taken by harassment. While the 
percentage of stock taken from the Oregon/Washington coastal stock of 
harbor seal appears to be high (74.5 percent), in reality the number of 
individuals taken by harassment would be far less. Instead, it is more 
likely that there will be multiple takes of a smaller number of 
individuals over multiple days, lowering the number of individuals 
taken. The range of the Oregon/Washington coastal stock includes harbor 
seals from the California/Oregon border to Cape Flattery on the Olympic 
Peninsula of Washington, which is a distance of approximately 150 miles 
(240 km) (Carretta et al., 2002). Additionally, there are over 150 
Oregon/Washington coastal harbor seal stock haulouts along the outer 
Washington coast spanning from the Columbia River north to Tatoosh 
Island on the northwestern tip of the Olympic Peninsula (Scordino, 
2010). This figure does not include many additional haulout sites found 
along the Oregon coast. Given the expansive range of the Oregon/
Washington coastal stock along with the numerous haulouts that have 
been documented on the Washington coast, it is unlikely that the number 
of individuals taken, limited largely to the pool of seals present in 
Grays Harbor, would exceed \1/3\ of the stock. In consideration of 
various factors described above, we have preliminarily determined that 
numbers of individuals taken would comprise less than one-third of the 
best available population abundance estimate of the Oregon/Washington 
coastal stock of harbor seal.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals would be taken relative to the population 
size of the affected species or stocks.

[[Page 24455]]

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 ESA of 1973 (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 proposed for 
authorization or expected to result from this activity. Therefore, NMFS 
has determined that formal consultation under section 7 of the ESA is 
not required for this action.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to AGP for conducting pile driving activities at the Port 
from July 16, 2024 through July 15, 2025, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated. A draft of the proposed IHA can be found at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this notice of proposed IHA for the proposed pile 
driving by AGP. We also request comment on the potential renewal of 
this proposed IHA as described in the paragraph below. Please include 
with your comments any supporting data or literature citations to help 
inform decisions on the request for this IHA or a subsequent renewal 
IHA.
    On a case-by-case basis, NMFS may issue a one-time, one-year 
renewal IHA following notice to the public providing an additional 15 
days for public comments when (1) up to another year of identical or 
nearly identical activities as described in the Description of Proposed 
Activity section of this notice is planned; or (2) the activities as 
described in the Description of Proposed Activity section of this 
notice would not be completed by the time the IHA expires and a renewal 
would allow for completion of the activities beyond that described in 
the Dates and Duration section of this notice, provided all of the 
following conditions are met:
     A request for renewal is received no later than 60 days 
prior to the needed renewal IHA effective date (recognizing that the 
renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA).
     The request for renewal must include the following:
    1. An explanation that the activities to be conducted under the 
requested renewal IHA are identical to the activities analyzed under 
the initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take).
    2. A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
     Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: April 1, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-07338 Filed 4-5-24; 8:45 am]
BILLING CODE 3510-22-P