[Federal Register Volume 89, Number 122 (Tuesday, June 25, 2024)]
[Notices]
[Pages 53046-53064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13818]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE014]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Ferndale Refinery Dock Maintenance 
and Pile Replacement Activities in Ferndale, 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 Phillips 66 Co. (Phillips 66) 
for authorization to take marine mammals incidental to Ferndale 
Refinery Dock Maintenance and Pile Replacement Activities in Ferndale, 
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 July 25, 
2024.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service 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: Jennifer Gatzke, 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 monitoring and 
reporting of the takings. 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 February 29, 2024 we received a request from Phillips 66 for an 
IHA to take marine mammals incidental to Ferndale Refinery Dock 
Maintenance and Pile Replacement Activities in Ferndale, Washington. 
Following NMFS' review of the application, Phillips 66 submitted 
revised versions on May 16 and May 20, 2024. The

[[Page 53047]]

application was deemed adequate and complete on May 21, 2024. Phillips 
66 has requested authorization of take by Level B harassment for harbor 
seal, California sea lion, Steller sea lion and harbor porpoise. 
Neither Phillips 66 nor NMFS expect serious injury or mortality to 
result from this activity and, therefore, an IHA is appropriate.

Description of Proposed Activity

Overview

    Phillips 66 is proposing to modernize the existing timber loading 
dock and replace it with a stronger structure that meets current 
industry best practices. The activity includes installation of steel 
piles by vibratory driving, and pile removal using an underwater 
chainsaw or cutting torch.
    In-water pile installation construction would occur for 35 days, 
which would occur intermittently between approximately August 1, 2024 
and October 31, 2024. Take of marine mammals is anticipated to occur 
due to vibratory pile installation. Removal of all piles is expected to 
take up to 66 days for underwater pile cutting with a chainsaw. Take of 
marine mammals is not anticipated to occur due to pile removal.

Dates and Duration

    This IHA would be valid for 1 year from the date of issuance. Due 
to in-water work timing restrictions to protect Endangered Species Act 
(ESA)-listed salmonids, all planned in-water construction in this area 
is limited to a work window beginning August 1 and ending February 1. 
However, since the Strait of Georgia is a very large water body with a 
long fetch, calm in-water work conditions are typically only available 
from August to the end of October. Pile removal processes are less 
dependent on good weather, and this portion of the project may occur 
from approximately August 1 to February 1. Therefore, Phillips 66 
expects that in-water pile installation construction work will occur 
from August 1, 2024 to October 31, 2024. Pile driving is anticipated to 
take up to 35 days to complete. Work may occur on nonconsecutive days 
due to weather and other project needs. Pile driving would be completed 
intermittently throughout daylight hours.

Specific Geographic Region

    Phillips 66 maintains and operates a marine dock on the 
southeastern shoreline of the Strait of Georgia in Ferndale, Washington 
as shown in figure 1. The Strait of Georgia encompasses the northern 
marine waters of the Salish Sea, with a long fetch that extends to the 
northwest between the Canadian mainland and Vancouver Island. The dock 
is built on aquatic lands leased from the Washington Department of 
Natural Resources (WDNR), with the lease boundary shown in figure 2. 
The shoreline and aquatic area surrounding the dock is part of the 
Cherry Point Aquatic Reserve, a WDNR protected marine environment. The 
shore area is characterized by wave washed feeder bluffs where sediment 
transport creates both sandy and cobbled beaches and intertidal zones.
BILLING CODE 3510-22-P

[[Page 53048]]

[GRAPHIC] [TIFF OMITTED] TN25JN24.004

Figure 1--Vicinity Map Showing the Strait of Georgia in the Northeast 
Puget Sound, WA

[[Page 53049]]

[GRAPHIC] [TIFF OMITTED] TN25JN24.005

Figure 2--Project Location Showing the WDNR Lease Boundary in Ferndale, 
WA

BILLING CODE 3510-22-C

Detailed Description of the Specified Activity

    The first phase of in-water construction activity consists of the 
vibratory installation of 116 steel piles of 20 inch diameter. Piles 
will be driven to approximately 40 ft (12.19 m) of penetration into the 
sea floor. Pile driving time is estimated to take 15 minutes per pile. 
Pile driving will take 35 days and pile driving time is not expected to 
exceed 4 hours in any 24-hour period.
    The next project phase is the removal of the old timber and steel 
pilings. Note that Phillips 66 is proposing to install the new steel 
piles before removing the old timber and steel ones in order to 
minimize facility downtime. Phillips 66 has determined that there is 
limited access for pile removal via vibratory or direct pull methods 
due to the location of the piles under the causeway. It may be 
necessary to utilize a variety of pile removal methods to safely 
complete this work. The existing 12-inch steel and creosote-treated 
timber piles (677 in total) will be cut below the mudline with an 
underwater chainsaw or cutting torch. Underwater chainsaw average 
underwater SPL (Sound Pressure Level) of 140 dB RMS. However, as noted 
above, this activity is not expected to cause incidental take of marine 
mammals as it produces relatively low source levels of noise that is 
similar to numerous other noise sources at a heavily used industrial 
marine environment. A cutting torch is not anticipated to generate 
significant noise. The removed piles will be lifted to a barge for 
proper disposal. Note that NMFS has determined that use of an 
underwater chainsaw or cutting torch is not expected to result in take 
and, therefore, these activities will not be discussed further.
    A summary of the proposed pile installation and removal methods for 
the dock project is presented below in table 1.

[[Page 53050]]



                                     Table 1--Summary of In-Water Pile Removal and Installation at Phillips 66 Dock
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                                                                                                                                            Hours pile
         Pile type and size                 Activity           Removal/install      Number of    Total days of in-water     Approximate    driver in use
                                                                    method            piles               work             piles per day      per day
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20-inch steel pipe pile............  Install..............  Vibratory hammer.....          116  Up to 35................              16               4
12-inch timber and steel pipes.....  Removal..............  Underwater chainsaw            677  Up to 66................              NA              NA
                                                             and cutting torch.
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    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 2 lists all species or stocks for which exposure is expected 
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 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 2 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 2--Species for Which Take Could Occur in the Project Area
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                                                                                         ESA/MMPA status;    Stock abundance (CV,
             Common name                  Scientific name               Stock             Strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\         abundance  survey) \2\              SI3 \3\
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                                                 Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
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Family Balaenopteridae (rorquals):
    Humpback Whale..................  Megaptera novaeangliae.  Central America/         E, D, Y             1,494 (0.171, 1,284,          3.5       14.9
                                                                Southern Mexico--CA/OR/                      2021).
                                                                WA.
    Humpback Whale..................  Megaptera novaeangliae.  Mainland Mexico--CA/OR/  T, D, Y             3,477 (0.101, 3,185,           43         22
                                                                WA.                                          2018).
    Humpback Whale..................  Megaptera novaeangliae.  Hawaii.................  -, -, N             11,278 (0.56, 7,265,          127      27.09
                                                                                                             2020).
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                                                  Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
    Killer Whale....................  Orcinus orca...........  Eastern North Pacific    E, D, Y             73 (N/A, 73, 2022)....       0.13          0
                                                                Southern Resident.
    Killer Whale....................  Orcinus orca...........  West Coast Transient...  -, -, N             349 (N/A, 349, 2018)..        3.5        0.4
Family Phocoenidae (porpoises):
    Harbor porpoise.................  Phocoena phocoena......  Washington Inland        -, -, N             11,233 (0.37, 8,308,           66      >=7.2
                                                                Waters.                                      2015).
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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):

[[Page 53051]]

 
    Harbor Seal.....................  Phoca vitulina.........  Washington Northern      -, -, N             16,451 (0.07, 15,462,         928         40
                                                                Inland Waters.                               2019).
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\1\ Information on the classification of marine mammal species follows The Society for Marine Mammalogy's Committee on Taxonomy (https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/).ESA status: Endangered (E), Threatened (T)/MMPA status:
  Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic
  stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the
  ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic
  stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.

    All species that could potentially occur in the proposed project 
area are included in table 2 of the IHA application. While the gray 
whale, minke whale, Dall's porpoise, and the Eastern North Pacific 
Northern Resident stock of killer whale have been reported in the area, 
the temporal and/or spatial occurrence of these species is such that 
take is not expected to occur, and they are not discussed further 
beyond the explanation provided here. The gray whale is uncommon in the 
area, but may pass through the Puget Sound during migration. Per the 
population analysis on gray whales from 1996-2015, from June 1 to 
November 30, there were only 6 days when sightings were recorded in the 
Northern Puget Sound. The Northern Puget Sound refers to a study range 
of the Puget Sound marine waters from Edmonds, WA to the Canadian 
border (Calambokidis, 2017). Additionally, gray whales would not be 
migrating when in-water work would most likely occur for this project 
(i.e., August through October). Therefore, since the occurrence of the 
gray whale is low at any time of year, and no gray whales are expected 
to occur during the expected work period, take of this species is not 
expected. While the minke whale may be observed in the San Juan Islands 
and southern Puget Sound, reports of minke whales in the Southeastern 
Strait of Georgia are rare. The Dall's porpoise has historically been 
present in the Puget Sound, but their numbers have declined 
significantly and are now also considered to be rare (Evenson 2016, 
Jefferson et al., 2016, Jefferson 2024). Finally, while the Eastern 
North Pacific Northern Resident stock of killer whale may occur 
infrequently in Washington, its primary range is located in British 
Columbia, Canada, and Southeast Alaska (Dahlheim et al., 1997, Ford et 
al., 2000), and no take of this stock is expected to occur.

Humpback Whale

    Humpback whales are found in coastal waters of Washington as they 
migrate from feeding grounds in Alaska to California to winter breeding 
grounds in Central America and Mexico or Hawaii. Humpbacks used to be 
considered only rare visitors to Puget Sound. In 1976 and 1978, two 
sightings were reported in Puget Sound and one sighting was reported in 
1986 (Osborne et al., 1988; Calambokidis and Steiger 1990; Calambokidis 
and Baird 1994). Humpback whale occurrence in Puget Sound has been 
steadily increasing since 2000, with some individuals remaining in the 
area through the winter (Calambokidis et al., 2018).
    On September 8, 2016, NMFS divided the once single species into 14 
distinct population segments (DPS) under the ESA, removed the species-
level listing as endangered, and, in its place, listed four DPSs as 
endangered and one DPS as threatened (81 FR 62259, September 8, 2016). 
The remaining nine DPSs were not listed. There are four DPSs in the 
North Pacific, including Western North Pacific and Central America, 
which are listed as endangered, Mexico, which is listed as threatened, 
and Hawaii, which is not listed.
    The 2022 Pacific SARs described a revised stock structure for 
humpback whales which modifies the previous stocks designated under the 
MMPA to align more closely with the ESA-designated DPSs (Caretta et 
al., 2023; Young et al., 2023). Specifically, the three previous North 
Pacific humpback whale stocks (Central and Western North Pacific stocks 
and a CA/OR/WA stock) were replaced by five stocks, largely 
corresponding with the ESA-designated DPSs. These include Western North 
Pacific and Hawaii stocks and a Central America/Southern Mexico-CA/OR/
WA stock (which corresponds with the Central America DPS). The 
remaining two stocks, corresponding with the Mexico DPS, are the 
Mainland Mexico-CA/OR/WA and Mexico-North Pacific stocks (Caretta et 
al., 2023; Young et al., 2023). The former stock is expected to occur 
along the west coast from California to southern British Columbia, 
while the latter stock may occur across the Pacific, from northern 
British Columbia through the Gulf of Alaska and Aleutian Islands/Bering 
Sea region to Russia.
    Within U.S. west coast waters, three current DPSs may occur: The 
Hawaii DPS (not listed), Mexico DPS (threatened), and Central America 
DPS (endangered). According to Wade et al. (2021), the probability that 
whales encountered in Washington waters are from a given DPS are as 
follows: Hawaii, 69 percent; Mexico (CA-OR-WA), 25 percent; Central 
America, 6 percent.
    Humpback whales, while relatively few in number, are regularly seen 
in the Puget Sound. They are most frequently found in the South Puget 
Sound, the Strait of Juan De Fuca, the Haro Strait and among the 
Canadian Gulf Islands. They are found in transit in the southern parts 
of the Strait of Georgia on occasion, but are not a common occurrence 
per the sightings archive of the Orca Network (https://www.orcanetwork.org/recent-sightings, accessed June 2024).

Killer Whale

    There are three distinct ecotypes, or forms, of killer whales 
recognized in the north Pacific: resident, transient, and offshore. The 
three ecotypes differ morphologically, ecologically, behaviorally, and 
genetically. Resident killer whales exclusively prey upon fish, with a 
clear preference for salmon (Ford and Ellis 2006; Hanson et al., 2010; 
Ford et al., 2016), while transient killer whales exclusively prey upon 
marine mammals (Caretta et al., 2019). Less is known about offshore 
killer whales, but they are believed to consume primarily fish, 
including several species of shark (Dahlheim et al., 2008). The 
seasonal movements of

[[Page 53052]]

transients are largely unpredictable, although there is a tendency to 
investigate harbor seal haulouts off Vancouver Island more frequently 
during the pupping season in August and September (Baird 1994; Ford 
2014). Transient killer whales have been observed in central Puget 
Sound in all months (Orca Network 2021).
    Southern Resident killer whales (SRKW) are typically found in the 
Salish Sea in spring, summer and fall, and are found along the west 
coast of the United States and British Columbia in the winter (NOAA, 
2022). The J pod tends to stay closer to the Puget Sound even during 
winter. The orca pods travel about the Puget Sound swiftly and, though 
a rare occurrence, the pods may pass through in the project area. On 
March 28, 2024, the J pod was sighted in the Strait of Georgia, about 
23 miles west of the project area near Mayne Island (Orca Network, June 
2024). ESA summer core area critical habitat for SRKW has been 
designated in Puget Sound, which includes all U.S. marine waters in 
Whatcom County, WA, where Ferndale Dock is located (50 CFR 226; August 
2, 2021).

Harbor Porpoise

    Harbor porpoise occur along the U.S. west coast from southern 
California to the Bering Sea (Carretta et al., 2020). The Washington 
Inland Waters stock is found from Cape Flattery throughout Puget Sound 
and the Salish Sea region. In southern Puget Sound, harbor porpoise 
were common in the 1940s, but marine mammal surveys, stranding records 
since the early 1970s, and harbor porpoise surveys in the early 1990's 
indicated that harbor porpoise abundance had declined (Carretta et al., 
2020). Annual winter aerial surveys conducted by the Washington 
Department of Fish and Wildlife from 1995 to 2015 revealed an 
increasing trend in harbor porpoise in Washington inland waters, 
including the return of harbor porpoise to Puget Sound (Carretta et 
al., 2020). Seasonal surveys conducted in spring, summer, and fall 
2013-2015 in Puget Sound and Hood Canal documented substantial numbers 
of harbor porpoise in Puget Sound. Observed porpoise numbers were twice 
as high in spring as in fall or summer, indicating a seasonal shift in 
distribution.
    Harbor porpoise reside in the Puget Sound year-round. Data from 
harbor porpoise sightings indicate that distribution is heterogeneous 
with some areas consistently suggesting higher densities of harbor 
porpoise. The British Columbia Cetacean Sightings Network (BCCSN) 
reports summer concentrations in areas that include the South-Central 
Strait of Georgia (Canadian side), Haro Strait, Boundary Pass and sites 
further north in British Columbia. Winter concentrations include the 
Port of San Juan, Haro Strait, Swanson Channel, and the central Strait 
of Georgia (in British Columbia) (Zier, 2015).

California Sea Lion

    California sea lions occur from Vancouver Island, British Columbia, 
to the southern tip of Baja California. They breed on the offshore 
islands of southern and central California from May through July (Heath 
and Perrin, 2008). During the non-breeding season, adult and subadult 
males and juveniles migrate northward along the coast to central and 
northern California, Oregon, Washington, and Vancouver Island 
(Jefferson et al., 1993). They return south the following spring (Heath 
and Perrin 2008, Lowry and Forney, 2005). Females and some juveniles 
tend to remain closer to rookeries (Antonelis et al., 1990; Melin et 
al., 2008).
    California sea lions regularly occur on rocks, buoys and other 
structures, and are the most frequently sighted otariid found in 
Washington waters. Some 3,000 to 5,000 animals are estimated to move 
into Pacific Northwest waters of Washington and British Columbia during 
the fall (September) and remain until the late spring (May) when most 
return to breeding rookeries in California and Mexico (Jeffries et al., 
2000). Peak counts of over 1,000 animals have been made in Puget Sound 
(Jeffries et al., 2000).
    There are no known haulouts in close proximity to the proposed 
project area but California sea lions may be in the vicinity foraging 
as they move through the wider area. While California sea lions can be 
found throughout the Puget Sound, estimates place the number of 
California sea lions in the springtime at an average of 450 in the 
Puget Sound proper (Jefferson, et al., 2023). There are two documented 
haulouts in the southern Strait of Georgia, both along the western 
coast of the Strait of Georgia in British Columbia, Canada. The closest 
haulout is near Tumbo Island on the eastern edge of the Gulf Islands, 
over 15 miles from the project site (LeValley, E., 2021).

Steller Sea Lion

    Steller sea lions in the project area are expected to be from the 
Eastern U.S. stock. The Eastern U.S. stock of Steller sea lions is 
found along the coasts of southeast Alaska to northern California where 
they occur at rookeries and numerous haulout locations along the 
coastline (Jeffries et al., 2000; Scordino, 2006; NMFS, 2013).
    In Washington waters, numbers decline during the summer months, 
which correspond to the breeding season at Oregon and British Columbia 
rookeries (approximately late May to early June) and peak during the 
fall and winter month.
    The majority of Steller sea lion population in Washington is found 
on the west coast but there are consistently used haulouts and breeding 
sites throughout the Puget Sound. These sites are typically rocky, 
gravel or sand beaches, ledges and reefs. There are two documented 
haulouts in the southern Strait of Georgia. The first is near Tumbo 
Island on the eastern edge of the Gulf Islands in British Columbia, 
Canada, (west coast of the Strait of Georgia), approximately 15 miles 
from the project area. The second is on Sucia Island (LeValley, E. 
2021), approximately 10 miles distant from the project area, at the 
southern end of the Strait of Georgia.

Harbor Seal

    Harbor seals are the most common, widely distributed marine mammal 
found in Washington marine waters and are frequently observed in the 
nearshore marine environment. They occur year-round and breed in 
Washington. They are frequently found in saltwater bays, estuaries and 
inlets. Their preferred haulouts include intertidal and subtidal rocks, 
beaches, sandbars, rocky reefs, log booms and floats.
    There are 3 delineated stocks in the Puget Sound. These stocks 
include the Hood Canal stock, the Northern Inland Waters stock and the 
Southern Puget Sound stock.
    This project is only likely to affect the Northern Inland Waters 
Stock, which is the most wide-spread stock throughout the Puget Sound, 
from Cape Flattery, to the Strait of Georgia, to the Tacoma Narrows 
Bridge (NOAA, 2022). Haulouts may be just a few individuals but may 
range beyond 500 individuals. Harbor seals generally live and feed in a 
limited range but may travel up to 400 miles for seasonal prey. The 
Strait of Georgia is a very large body of water with no haulouts in the 
immediate vicinity of the project. The closest documented haulouts are 
two different low population (>100 individuals) locations approximately 
5 miles from the project site, one to the north and one to the south 
(Jeffries et al., 2000). To the southwest and west of the project 
location are 14 other haulouts dotted throughout a few of the small 
northern San Juan Islands (North of Orcas Island)

[[Page 53053]]

within 10 miles of the project (Jeffries et al., 2000).

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 3.

                  Table 3--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 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 Sound 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 vibratory pile driving, and vibratory pile removal. The sounds 
produced by these activities are considered 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).

[[Page 53054]]

    Only one type of pile hammer would be used on this project: 
vibratory. 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 activity proposed by Phillips 66 
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 is the primary means by which marine 
mammals may be harassed from the Phillips 66 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 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 for this project requires vibratory pile driving. 
For the project, there would likely be pauses in

[[Page 53055]]

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, and is considered unlikely for this project.
    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 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. 
Ferndale Dock services barges, tanker ships, and other vessels. 
Approximately 3,000 ships travel through the Strait of Georgia to visit 
Vancouver. Therefore, background sound levels in the project area are 
likely already elevated.

Marine Mammal Habitat Effects

    The proposed Phillips 66 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 waters 
around the dock, 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. 
Phillips 66 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 may temporarily increase turbidity resulting from 
suspended sediments. Any increases would be temporary, localized, and 
minimal. Phillips 66 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 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 at the project site would not 
obstruct movements or migration of marine mammals.

[[Page 53056]]

Effects on Prey

    Construction activities would produce continuous (i.e., vibratory 
pile 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. Since only continuous vibratory piling will be 
used in this project, impacts are expected to be less.
    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 activities expected to take only 35 days. There will 
be no more than a total of 4 hours vibratory driving per 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 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 be by Level B harassment only, as use of the 
acoustic stressors (i.e., pile driving) has the potential to result in 
disruption of behavioral patterns for individual marine mammals. 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).
    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

[[Page 53057]]

potential reduced opportunities to detect important signals 
(conspecific communication, predators, prey) may result in changes in 
behavior patterns that would not otherwise occur.
    The Phillips 66 proposed activity includes the use of continuous 
sound sources (vibratory driving), and therefore the RMS SPL threshold 
of 120 dB re 1 [mu]Pa is applicable.
    These thresholds are provided in the table 4 below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS' 2018 Technical Guidance, which may be accessed at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance.

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

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that 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., vibratory pile driving). 
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 B harassment sound thresholds for the method 
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 
pile installation of 20-in steel piles. Source levels for the pile size 
and driving method are presented in table 5. The closest representative 
pile size for reference sound levels was 24-inch piles (WSDOT 2020).

                      Table 5--Proxy Sound Source Levels for Pile Sizes and Driving Methods
----------------------------------------------------------------------------------------------------------------
                                                                  Noise level
                Equipment used                --------------------------------------------------  Distance from
                                                   dB Peak           dB rms          dB SEL        measurement
----------------------------------------------------------------------------------------------------------------
Vibratory pile driving 24-inch steel piles                181              153   ..............            10 m
 \1\.........................................
----------------------------------------------------------------------------------------------------------------
\1\ Caltrans 2020.


[[Page 53058]]

    The ensonified area associated with Level A harassment is more 
technically challenging to predict due to the need to account for a 
duration component. Therefore, NMFS developed an optional User 
Spreadsheet tool to accompany the Technical Guidance that can be used 
to relatively simply predict an isopleth distance for use in 
conjunction with marine mammal density or occurrence to help predict 
potential takes. We note that because of some of the assumptions 
included in the methods underlying this optional tool, we anticipate 
that the resulting isopleth estimates are typically going to be 
overestimates of some degree, which may result in an overestimate of 
potential take by Level A harassment. However, this optional tool 
offers the best way to estimate isopleth distances when more 
sophisticated modeling methods are not available or practical. For 
stationary sources such as 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 NMFS User Spreadsheet tool, and the resulting 
estimated isopleths, are reported below in tables 6 and table 7 below.

    Table 6--User Spreadsheet Inputs for Level A Harassment Isopleths
------------------------------------------------------------------------
                        Inputs                            20-in steel
------------------------------------------------------     vibratory
                                                          installation
                                                      ------------------
                                                         Vibratory Pile
                 Spreadsheet Tab Used                       Driving
                                                       (Stationary: non-
                                                           impulsive,
                                                          Continuous)
------------------------------------------------------------------------
Source Level (Single Strike/shot SEL)................  .................
Peak.................................................  .................
RMS..................................................                153
Weighting Factor Adjustment (kHz)....................                2.5
Strikes per pile.....................................  .................
Piles per day........................................                 16
Propagation (xLogR)..................................                 15
Duration.............................................                 15
Distance of source level measurement (meters)+.......                 10
------------------------------------------------------------------------


                                  Table 7--Calculated Level A and Level B Harassment Isopleths (m) and Ensonified Areas
                                                                 [km\2\ in Parentheses]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Level A pinnipeds                         Level A cetaceans
           Pile size/type           -------------------------------------------------------------------------------------             Level B
                                       Harbor seal       Sea lions            LF               MF               HF
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Vibratory Installation                                                   120 dB threshold.
--------------------------------------------------------------------------------------------------------------------------------------------------------
20-in steel........................       3.1 (.003)        <1 (.000)         5 (.005)        <1 (.000)       7.5 (.007)  1585 (1.5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The Level A harassment isopleths associated with vibratory installation are all below the minimum shutdown zone and result in very small ensonified
  areas. Therefore they are not provided in this table but will be included in the following calculated take tables.

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). These density estimates are shown in table 8 and 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 harassment zone (km\2\) x maximum days of 
pile driving where
    N = density estimate (animals per km\2\) used for each species.

 Table 8--Marine Mammal Species Densities Used for Exposure Calculations
------------------------------------------------------------------------
                                                        Density (animals/
            Species              Region characterized        km\2\)
------------------------------------------------------------------------
Humpback Whale................  North Puget Sound/San             0.0027
                                 Juan Islands (Fall
                                 and Winter).
Killer Whale (Southern          North Puget Sound/San             0.0078
 Resident).                      Juan Islands (Fall
                                 and Winter).
Killer Whale (Transient)......  North Puget Sound/San             0.0031
                                 Juan Islands (Fall
                                 and Winter).
Harbor Porpoise...............  North Puget Sound.....              2.16
Steller Sea Lion..............  North Puget Sound/San             0.0027
                                 Juan Islands (Fall).
California Sea Lion...........  North Puget Sound/San             0.0179
                                 Juan Islands (Fall).
Harbor Seal...................  North Puget Sound/San               0.76
                                 Juan Islands (Fall).
------------------------------------------------------------------------
Source: Navy 2019.


[[Page 53059]]

    Potential Level A harassment zones were all calculated to less than 
10 meters. As seen from table 7, marine mammals will have to be very 
close to the vibratory driving activity to be within the estimated 
Level A harassment zone. Marine mammal monitors will be in place, 
closely monitoring this zone and stopping work before any marine mammal 
gets near the largest Level A harassment zone of 6.2m from the project 
source. Based on the estimated Level A harassment zones, and density-
based calculations for all species, no take by Level A Harassment was 
estimated (all less than 1.0). Harbor porpoise is the species with the 
highest density at 2.16 per km, multiplied by the Level A harassment 
zone of .007 km (table 7), and 35 days of work yields 0.53 individuals 
exposed to Level A harassment. Therefore, when considered in context of 
planned mitigation, no take by Level A harassment is expected. Table 9 
below shows the total calculated take by Level B harassment over the 35 
in-water work days proposed for the Phillips 66 activity resulting in 
total calculated take.

    Table 9--Calculated and Requested Take by Level B Harassment From
                       Vibratory Pile Installation
------------------------------------------------------------------------
        35 Days of 20-inch pile installation by vibratory hammer
-------------------------------------------------------------------------
                                                            Level B
                                      Total level B        harassment
              Species                   harassment        proposed for
                                        calculated       authorization
------------------------------------------------------------------------
Harbor Porpoise...................                447                447
Steller Sea Lion..................                  1                 35
California Sea Lion...............                  4                105
Harbor Seal.......................                157                157
------------------------------------------------------------------------

Humpback Whale

    Humpback whales are an uncommon occurrence near the project area 
but they do have the potential to be in the area as they migrate to 
feeding grounds to the north and mating grounds far south. Based on 
best available density estimates, Phillips 66 has calculated the 
potential take of one humpback whale, by Level B harassment only. 
However, Phillips 66 proposes to shut down whenever humpback whales 
approach the Level B harassment zone. Given the low density of humpback 
whales in the project area, the ability to detect the whales visually 
from a considerable distance, the capacity to track whales through the 
Orca Network, and the anticipated efficacy of proposed mitigation and 
monitoring measures, Phillips 66 determined that no take of humpback 
whales is likely to occur and did not request that any such take be 
authorized. NMFS concurs with this request and, therefore, is not 
proposing to authorize take of humpback whales.

Killer Whales

    Both SRKW and transient killer whales could potentially occur near 
the project area. Based on best available density estimates, Phillips 
66 has calculated that up to two SRKWs and one transient whale could be 
taken, by Level B harassment only. Even though the project site is 
located in summer core area critical habitat, and the project may begin 
August 1, the southeastern corner of the Strait of Georgia (where the 
project is located) is not a location where SRKW are commonly sighted. 
According to the monthly ORCA network reports of September through 
October, from 2016-2023, the occurrence of killer whales from any stock 
was uncommon in the southeastern corner of the Strait of Georgia. When 
compared to transient killer whales, sightings of SRKWs were far less 
prevalent (ORCA 2024). Mitigation requires that pile driving activity 
shut down whenever a killer whale from any stock is observed 
approaching a harassment zone. Given the ability to visually detect 
killer whales from proposed PSO locations (including boats), the 
capacity to track this species through contact with the ORCA Network, 
and the expected efficacy of proposed mitigation and monitoring 
measures, Phillips 66 elected to not request take. Due to the expansive 
range of SRKWs; the relatively small area of their habitat that may be 
affected by the proposed project; the ready availability of habitat of 
similar or higher value, and the short-term nature of installation 
construction (35 days), Phillips 66 determined that no take of killer 
whales is likely to occur and did not request that any such take be 
authorized. NMFS concurs with this request and, therefore, is not 
proposing to authorize take of killer whales.

Steller Sea Lion

    Calculated take based upon the species density in the Strait of 
Georgia yielded one potential take by Level B harassment during the 35 
days of in-water pile driving work. While there are no known nearby 
haulouts, there are haulouts in the greater Strait of Georgia. Phillips 
66 determined, based on anecdotal sightings at the facility, that the 
calculated value was too low. In addition, this species is known to 
travel significant distances in search for prey, possibly into the 
surrounding marine waters of the Cherry Point Aquatic Reserve.
    NMFS reviewed other IHA monitoring reports from Puget Sound and 
found that the Seattle Pier 63 construction project (87 FR 31985, May 
26, 2022) reported a maximum of one animal present per day over 17 in-
water work days between October 12 and November 30, 2022. Therefore, 
NMFS assumes a similar rate of occurrence and is proposing to authorize 
35 (one/day) takes of Steller sea lion by Level B harassment.

California Sea Lion

    Calculated take based upon the species density in the Strait of 
Georgia found 4 potential takes by Level B harassment during the 35 
days of pile driving work at the Phillips 66 dock. While there are no 
known nearby haulouts, there are haulouts in the greater Strait of 
Georgia. Phillips 66 determined, based on anecdotal sightings at the 
facility, that the calculated value was too low. In addition, this 
species is known to travel significant distances in search for prey, 
possibly into the surrounding marine waters of the Cherry Point Aquatic 
Reserve.
    NMFS reviewed other IHA monitoring reports from Puget Sound and 
found that the Seattle Pier 63 construction project (87 FR 31985, May 
26, 2022) reported a maximum of three California sea lions present per 
day over 17 in-water work days between October 12 and November 30, 
2022. Therefore, NMFS assumes a similar rate of occurrence and is 
proposing to authorize 105 (three/day) takes of

[[Page 53060]]

California sea lions by Level B Harassment.
    Details of proposed takes by Level B harassment as a percentage of 
stocks are shown in table 10.

 Table 10--Proposed Take of Marine Mammals by Level B Harassment by Species, Stock, and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
                                                                                                Proposed take as
           Common name                     Stock          Stock abundance     Total proposed     percentage of
                                                                                   take              stock
----------------------------------------------------------------------------------------------------------------
Harbor porpoise..................  Washington Inland                11,233                447               3.97
                                    Waters.
Steller sea lion.................  Eastern U.S.........             36,308                 35               0.10
California sea lion..............  U.S.................            257,606                105               0.04
Harbor seal......................  Washington Northern              16,451                157               0.95
                                    Inland.
----------------------------------------------------------------------------------------------------------------

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. 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, impact on 
operations.
    Pre-start Clearance 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 (discussed below) 
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 11, 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 all pile driving activities, 
Phillips 66 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 takes by Level A harassment from 
vibratory pile driving for all four species for which take may occur.
    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 and monitoring zones for each activity type 
are shown in table 11.

                        Table 11--Shutdown Zones During Pile Installation and Removal (m)
----------------------------------------------------------------------------------------------------------------
                                                        Shutdown zones                              Level B
         Pile size/type          ------------------------------------------------------------     harassment
                                          HF                Phocid              Otariid         monitoring zone
----------------------------------------------------------------------------------------------------------------
20-in steel Vibratory...........                 10                  10                  10               1,585
----------------------------------------------------------------------------------------------------------------

    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 one of the four species of marine mammal for which take would 
be authorized enters the Level B harassment zone, in-water activities 
would continue and 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.
    Coordination With Local Marine Mammal Research Network--Prior to 
the start of pile driving for the day the

[[Page 53061]]

PSOs would contact the Orca Network to find out the location of the 
nearest sightings of any killer whales or humpback whales. Phillips 66 
must delay or halt pile driving activities if any killer whales or 
humpback whales are sighted within the vicinity of the project area and 
are approaching the Level B harassment zones (table 11) during in-water 
activities. Finally, if a SRKW, unidentified killer whale, or humpback 
whale enters the Level B harassment zone undetected, in-water pile 
driving must be suspended immediately upon detection and must not 
resume until the animal exits the Level B harassment zone or 15 minutes 
have passed without re-detection of the animal.
    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. 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 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. Pile driving activities 
include the time to install or remove a single pile or series of piles, 
as long as the time elapsed between uses of the pile driving equipment 
is no more than 30 minutes.
    A minimum of two PSOs would be on duty during all in-water pile 
driving activities. One `shore-based' observer will be stationed at 
locations offering best line of sight views to monitor the entirety of 
the shutdown zones and provide the most complete coverage of the 
monitoring zones. Additionally, Phillips 66 proposes to deploy one 
boat-based PSO that will be positioned at a location or moving in a 
pattern that offers the most complete visual coverage of the monitoring 
zone. Note, however, PSO 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. Phillips 66 would adhere 
to the following observer qualifications:
    1. PSOs must be independent of the activity contractor (for 
example, employed by a subcontractor) and have no other assigned tasks 
during monitoring periods,
    2. 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,
    3. 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,
    4. 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,
    5. 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

[[Page 53062]]

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, and the total equipment duration or total 
number of minutes for each pile (vibratory 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 
zone, 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.

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, Phillips 
66 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 Phillips 66 
to determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Phillips 66 would not be 
able to resume their activities until notified by NMFS.
    In the event that Phillips 66 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), 
Phillips 66 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 
Phillips 66 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 9, 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.

[[Page 53063]]

    Pile driving 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 B harassment from underwater sounds generated from pile 
driving. Potential takes could occur if individuals of these species 
are present in zones ensonified above the thresholds for Level B 
harassment identified above when these activities are underway.
    Take by Level B harassment would be due to potential behavioral 
disturbance, and TTS. 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. 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. The impact of Level B 
harassment takes on the affected individuals would be minimized 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. The project site 
itself is frequented by large tankers every few days, but the majority 
of sound fields produced by the specified activities are relatively 
close to the dock. Animals disturbed by project sound would be expected 
to avoid the area and use nearby higher-quality habitats.
    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 intermittent driving schedule (35 in-water 
work days between August 1 and October 31, 2024); short duration of the 
activities (no more than 4 hours per day vibratory driving); 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. There are two 
documented California sea lion haulouts in the southern Strait of 
Georgia, both on the western coast of the Strait in British Columbia. 
The closest haulout in near Tumbo Island on the eastern edge of the 
Gulf Island, over 15 miles from the project site. The closest 
documented Steller sea lion haulout location is over 10 miles from the 
project site, on Sucia Island (Jeffries et al., 2000). The closest 
documented harbor seal haulouts are two different low population (>100 
individuals) locations approximately 5 miles from the project site, one 
to the north and one to the south (Jeffries et al., 2000). To the 
southwest and west of the project location are 14 other haulouts dotted 
throughout a few of the small northern San Juan Islands (North of Orcas 
Island) within 10 miles of the project (Jeffries et al., 2000).
    While repeated exposures of individuals to this pile driving 
activity could cause limited Level B harassment in harbor seals, harbor 
porpoises, 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;
     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 area from the project is very small relative 
to the overall habitat ranges of all species and stocks, and no habitat 
of particular importance would be impacted;
     Repeated exposures of marine mammals to this pile driving 
activity could cause Level B harassment in seals, harbor porpoise 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 by minimizing the intensity and/
or duration of harassment events.
    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 8 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 the total taking 
proposed for authorization is less than 4 percent of the best available 
population abundance estimate for all species.
    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

[[Page 53064]]

numbers of marine mammals would be taken, relative to the population 
size of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is 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 Phillips 66 for conducting in-water pile driving 
activities at the Phillips 66 Ferndale Refinery Dock in Ferndale 
Washington from August 1, 2024 through July 31, 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 
construction activities. 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, 1-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 1 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), 
and
    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, and
     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: June 18, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-13818 Filed 6-24-24; 8:45 am]
BILLING CODE 3510-22-P