[Federal Register Volume 90, Number 156 (Friday, August 15, 2025)]
[Proposed Rules]
[Pages 39346-39361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-15629]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 250813-0139]
RIN 0648-BN42
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Duckabush Estuary Restoration
Project in Washington
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule, request for comments.
-----------------------------------------------------------------------
SUMMARY: NMFS has received a request from the U.S. Army Corps of
Engineers (USACE) for incidental take regulations (ITR) and a Letter of
Authorization (LOA) pursuant to the Marine Mammal Protection Act. The
requested regulations would govern the authorization of take of small
numbers of marine mammals over 5 years (2026-2031) incidental to the
Duckabush Estuary Restoration Project (DERP) in Hood Canal, Washington.
NMFS requests public comments and will consider them prior to making
any final decision on the requested ITR and issuance of the LOA; agency
responses to comments will be summarized in the final rule, if issued.
DATES: Comments and information must be received no later than
September 15, 2025.
ADDRESSES: A plain language summary of this proposed rule is available
at: https://www.regulations.gov/docket/NOAA-NMFS-2025-0636.
Electronic Submissions: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2025-0636 in the Search box
(note: copying and pasting the FDMS Docket Number directly from this
document may not yield search results). Click on the ``Comment'' icon,
complete the required fields, and enter or attach your comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing at:
https://www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.),
[[Page 39347]]
confidential business information, or otherwise sensitive information
submitted voluntarily by the sender will be publicly accessible. NMFS
will accept anonymous comments (enter ``N/A'' in the required fields if
you wish to remain anonymous).
FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION: A copy of the USACE's 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/action/incidental-take-authorization-us-army-corps-engineers-duckabush-estuary-restoration-project. In case of problems accessing these
documents, please call the contact listed above (see FOR FURTHER
INFORMATION CONTACT).
Purpose and Need for Regulatory Action
This proposed rule, if adopted, would establish a framework under
the authority of the Marine Mammal Protection Act (MMPA) (16 U.S.C.
1361 et seq.) to authorize, for a 5-year period (2026-2031), take of
marine mammals incidental to the USACE's construction activities
associated with the DERP. NMFS received an application (the
application) from the USACE requesting 5-year regulations and an LOA to
take a single species of marine mammals. Take would occur by Level B
harassment only incidental to construction activities. Except with
respect to certain activities not pertinent here, section 3(18) of the
MMPA defines ``Level B harassment'' as any act of pursuit, torment, or
annoyance, which 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. Take by Level A harassment is not anticipated
or proposed for authorization. Similarly, no mortality or serious
injury is anticipated or proposed.
Legal Authority for the Proposed Action
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, regulations are
promulgated, and public notice and an opportunity for public comment
are provided.
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 as ``mitigation'').
The MMPA sets forth requirements pertaining to the mitigation,
monitoring and reporting of the takings. The definitions of all
applicable MMPA statutory terms cited above are included in the
discussion below.
Section 101(a)(5)(A) of the MMPA and the implementing regulations
at 50 CFR part 216, subpart I provide the legal basis for proposing
and, if appropriate, issuing 5-year regulations and an associated LOA.
This proposed rule also establishes required mitigation, monitoring,
and reporting requirements for the USACE's activities.
Summary of Major Provisions Within the Proposed Rule
The following is a summary of the major provisions of this proposed
rule regarding USACE construction activities. These provisions include
measures requiring:
Performance of construction work only during daylight
hours when visual monitoring of marine mammals can be implemented;
Gradually increasing time periods dedicated to
construction activities each day throughout the day to reduce the risk
of potentially startling marine mammals;
Conducting 30 minutes of pre- and post-activity monitoring
associated with pile installation or removal activities;
Establishment and monitoring by protected species
observers (PSOs) of a 300-meter observation zone for all construction
activities;
Halting construction activity: (1) if a marine mammal
comes within 10 meters of operations of heavy equipment; or (2) a pup
less than one week old comes within 20 meters of where heavy machinery
is operating; and
Not initiating construction activities within 300 meters
of a mother-pup pair that is hauled out, or within 100 meters of a
mother-pup pair in the water.
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 evaluate the proposed action (i.e., promulgation of
regulations and subsequent issuance of a 5-year LOA) and alternatives
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (Incidental Harassment Authorizations
(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 issuance
of the proposed rule qualifies to be categorically excluded from
further NEPA review.
Information in the USACE's application and this document
collectively provide the environmental information related to proposed
issuance of these proposed regulations and subsequent incidental take
authorization for public review and comment. We will review all
comments submitted in response to this notice of proposed rulemaking
prior to concluding our NEPA process and prior to making a final
decision on the request for incidental take authorization.
Summary of Request
On April 17, 2024 NMFS received an application from the USACE
requesting authorization for the take of marine mammals incidental to
construction activities associated with the DERP in Washington. A
revised application was submitted on September 27, 2024. We determined
the application was adequate and complete on November 19, 2024. On
November 25, 2024, we published a notice of receipt of the USACE's
application in the Federal Register, requesting comments and
information related to the request for 30 days (89 FR 92907). We
received no public comments.
The USACE requests authorization to take harbor seal (Phoca
vitulina), by Level B harassment only. The proposed regulations would
be valid for 5 years (2026-2031).
[[Page 39348]]
Description of Proposed Activity
Overview
The USACE would be working with the Washington Department of Fish
and Wildlife (WDFW) and the Washington State Department of
Transportation (WSDOT) to implement an ecosystem restoration project on
the Duckabush River Estuary in Hood Canal, WA. The project would
reconnect floodplain and intertidal wetlands to improve tidal exchange,
sediment transport, and estuary development. The DERP would restore
tidal and riverine hydrology to 38 acres (15.38 hectares) of the
Duckabush River delta, allowing for natural habitat-forming processes
including sediment and detritus exchange, freshwater input, and tidal
flushing. Restoration will provide rearing habitat for Hood Canal
summer chum salmon by reconnecting 20 river miles (32 kilometers (km))
of nearly pristine upstream habitat with a now fully functional salt
marsh and mudflat estuary. The USACE anticipates construction will take
up to 880 workdays across 48 months to complete. Time estimates assume
that construction would take place 8 hours per day, 5 days per week. At
the project location, the freshwater in-water work window is July 16-
August 15 and the marine in-water work window is July 16-January 15.
However, with the exception of very limited in-water work, these dates
are non-binding since the vast majority of construction work would be
land-based with minimal or no impacts on marine mammals.
Dates and Duration
The proposed regulations would be valid for a period of 5 years
from July 30, 2026 through July 29, 2031. In the Puget Sound region,
wet weather begins about mid-October and continues until about May,
although rainy periods could occur at any time of the year. The USACE
would attempt to schedule earthwork construction during the drier
months of June through September. During wet weather months, the
groundwater levels could increase, resulting in seepage into site
excavations. Placing and compacting fill may not be practicable during
wet weather.
Specific Geographic Region
The Duckabush River exists within a single channel encompassing a
76-square-mile (196.84 square kilometer) watershed near Brinnon, WA.
The Duckabush River Estuary is a tidally influenced river delta that
opens into Hood Canal on the south side of the Black Point Peninsula at
approximately Mile 310 of Highway 101. The estuary consists of
approximately 38 acres of salt marshes, eelgrass beds, and extensive
mud and gravel flats that support productive shellfish beds. The
project area is mostly undeveloped with single-family homes and
forested habitat comprising boundaries to the north, south, and west
while the Duckabush Estuary and Hood Canal form the eastern border.
The historical processes and functions of the Duckabush Estuary
site differ from current conditions. By the early 1900s, road and
bridge construction bisected the estuary. Washington State replaced
these early roadways in 1934 with two bridges over the Duckabush River
and Duckabush Slough as part of Highway 101. This highway cuts across
the intertidal river delta and estuary wetland complex, spanning the
main channel and a former distributary channel. The Highway 101 bridges
disrupt tidal circulation and impede fish access to productive salt
marsh and slough habitats. These hydrologic constrictions, along with
fill within the estuary, caused decline in mudflats and salt marshes.
BILLING CODE 3510-22-P
[[Page 39349]]
[GRAPHIC] [TIFF OMITTED] TP15AU25.014
BILLING CODE 3510-22-C
Detailed Description of the Specified Activity
A new Highway 101 crossing of the Duckabush Estuary, known as the
Highway 101 Bridge, would consist of an eight-span bridge, 1,613 feet
(491.64 meters (m)) long and 34 feet (10.36 m) wide. Span lengths would
range from about 175 feet (53.34 m) to 228 feet (69.49 m). The bridge
would be supported by nine piers and founded on drilled shaft
foundations. On the Highway 101 Bridge, construction crews would first
erect temporary work platforms so that all subsequent work will be
isolated from the estuary surface. The construction of the new
Petitjean Creek Bridge and realignments of Duckabush Road and Highway
101 bridge approaches would also occur during this timeframe. Work
within the current Highway 101 footprint would only occur after the new
bridge is open to traffic. The construction of the Highway 101 bridge
may take up to 600 workdays to complete over the course of 27 months.
The bridge would be built out of alignment with the current Highway
101, so any substructures and superstructures would be built
simultaneously. Construction would progress from south to north.
Construction of each section would begin with installing piers and
their related superstructure components. This portion of construction
would take 150 days to complete across the duration of the project.
Piers would be installed into the ground by oscillators, vibratory
hammers, augers, cranes, concrete mixing and pump trucks, and drill
rigs.
A new bridge (Petitjean Creek Bridge) would be constructed. Since
it falls within the current Highway 101 footprint, crews must take
measures during construction to minimize the impacts on traffic. To
accommodate through traffic during construction, crews would
temporarily widen the road by about 5 feet (1.52 m). Bridge
construction would occur in two phases. The first phase would consist
of
[[Page 39350]]
building the substructure and installing piers. In the second phase,
crews would build the superstructure, including the girders, traffic
barriers, and road surface. Pier installations for the Petitjean Creek
Bridge would follow the same protocol as described previously for
construction of the Highway 101 Bridge.
The realignment of Highway 101 bridge approaches and Duckabush Road
would require subgrade improvement, likely involving the installation
of aggregate piers. Construction of these piers may require an auger to
dig a pilot hole, filling the pier location with crushed stone, and
compacting this fill with a vibratory hammer. After aggregate pier
installations, standard road grading and surfacing would occur using
front-end loaders, graders, pavers, and vibratory rollers.
The existing Highway 101 causeway would be demolished by a dozer or
excavator with excavated material loaded on to dump trucks for off-site
removal. The finished causeway demolition cross section would excavate
24 inches below the finished grade and replace this material with
excavated channel material. The USACE would lower the causeway to the
8- to 9-foot (2.44 to 2.74 m) elevation range, which is within the
normal high tide line and Mean Higher High Water (MHHW). The training
berms upstream of the south bridge would be removed to an elevation of
10 feet (3.05 m). This would allow the Duckabush River to flow into
that area.
The demolition of existing Highway 101 bridges would occur after
the new bridge is fully operational as not to disrupt through traffic.
Following construction sequencing, the north bridge would be demolished
before the south bridge. For each bridge, the bridge decks would be
removed first, followed by piles and foundations. Work would access
from both sides of the bridges, using cranes, excavators, and concrete
cutting tools. Vibratory hammers may be used to remove embedded piers
during north bridge demolition. Some of these piers are located within
the wetted river channel up to 10 feet (3.05 m) below the high tide
line.
Wood piles removal typically uses a metal chain wrapped around the
pile to pull it up and out with a crane or excavator. If piles cannot
be removed in this manner, piles may be left intact 2-3 feet (0.61-0.91
m) below the streambed. If this is the case, divers with pneumatic
chainsaws would cut the pile tops off at the appropriate level.
The USACE would need to excavate six channels under or near the new
Highway 101 bridge to reconnect river delta distributary channels that
were disconnected by the old Highway 101 causeway. Channels would be
excavated from temporary work platforms when possible. Construction
will utilize swamp mats and low-pressure equipment when working from
the platforms is not feasible. The existing WDFW parking lot located
southwest of the new bridge would be enlarged and raised by 3 ft (.091
m) and two new pedestrian paths would also be built. Visual disturbance
of seals from these areas is unlikely as these items are located west
of Highway 101. Therefore, the newly constructed causeway and bridge
span would interfere with any direct sight lines to the seal haulout
areas. The USACE would install large wood structures, known as
engineered logjams, placed along restored banks to provide near-term
bank stability as the river re-establishes flow connections to restored
channels and vegetation becomes re-established on banks. For engineered
logjams, construction teams would augur four pilot holes for vertical
anchor piles. They would then place piles using a crane and then embed
to the final depth using an impact hammer, if necessary. These
structures are unlikely to result in visual disturbance of seals since
they are also located west of the new causeway and bridge span.
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 1 lists all species or stocks for which take is expected and
proposed to be authorized for this activity and summarizes information
related to the population or stock, including regulatory status under
the MMPA and Endangered Species Act (ESA) and potential biological
removal (PBR), where known. PBR is defined by the MMPA as the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population (as described in NMFS'
SARs). While no serious injury or mortality is anticipated or proposed
to be authorized here, PBR and annual serious injury and mortality (M/
SI) 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' U.S. Pacific Marine Mammal SARs (Carretta et al. 2024). All
values presented in table 1 are the most recent available at the time
of publication (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments).
[[Page 39351]]
Table 1--Marine Mammal Species \1\ Likely To Occur Near the Project Area That May Be Taken by USACE's Activities.
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Harbor Seal..................... Phoca vitulina......... Washington Inland Hood -, -, N 3,363 (0.16, 2,940, 88 2
Canal. 2019) \5\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
at: https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies.
\2\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\3\ NMFS marine mammal SARs online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region.
CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
\5\ These values were presented in the 2023 Draft Marine Mammal SAR. However, the draft 2023 SAR for the Washington Inland Waters harbor seal stocks,
including the Hood Canal stock was not finalized as part of the 2023 Final SAR (89 FR 104989, December 26, 2024) given that the Pearson et al. (2024)
estimates of abundance and trends remain unpublished at the time of publication. This SAR will be revised in a subsequent cycle when the abundance
estimates for these stocks are published. However, this remains the best available information for use in evaluating effects to this stock of harbor
seals.
As indicated above in table 1, a single species (with one managed
stock) temporally and spatially co-occurs with the activity to the
degree that take is reasonably likely to occur. All species that could
potentially occur in the proposed restoration and construction areas
are included in table 4 of the IHA application. Harbor porpoise
(Phocoena phocoena), Dall's porpoise (Phocoenoides dalli dalli), and
transient killer whale (Orcinus orca) would not be affected by the
proposed activities since there would be no impact to these marine
mammals occurring in the marine waters of Hood Canal. California sea
lion (Zalophus califiornianus) and Steller sea lion (Eumetopias
jubatus), have been documented in Hood Canal, but are not expected to
use any of the estuarine or upland haulout areas; therefore, these
species are not expected to be affected by the proposed activities.
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. Numerous harbor seal haulouts occur in Washington inland
waters and frequently occupy bays, estuaries, and inlets (Baird, 2001).
Ideal harbor seal habitat includes haulout sites, shelter during the
breeding periods, sufficient food, and harbor seals have displayed
strong fidelity to haulout sites.
Harbor seals are the only resident marine mammal species in Hood
Canal and utilize the Duckabush River estuary as one of the primary
haulout sites in the Canal (London et al. 2012, Jeffries et al. 2000).
Harbor seals typically haul out along the river channels and sloughs at
the Duckabush River estuary. Harbor seal counts peak at the Duckabush
River during the primary pupping season (August-October) and molting
season (September-November) with seals spending more time in the water
during colder winter and spring months (Jeffries et al. 2003, Jeffries
et al. 2000). WDFW conducts regular aerial surveys of hauled-out harbor
seals in Hood Canal, typically restricting monitoring to the peak of
the pupping period and the window 2 hours before and after high tides
to maximize the number of individuals observed on land.
The Hood Canal stock of harbor seals exhibit different haul out
behaviors and timing of pupping and molting seasons compared to coastal
and other Washington Inland Waters stocks as Hood Canal seals typically
haul out during low tide when more beach or substrate area is exposed
(Carretta et al. 2022). Hood Canal seals haul out at high tide along
river channels and sloughs because those areas are not as accessible
during low tides (London et al. 2012). Hood Canal has five main harbor
seal haulout sites including the Duckabush River estuary (Jeffries et
al. 2000, London et al. 2012). The population of the Hood Canal stock
of harbor seals has been relatively stable for the over the past three
decades (Pearson et al. 2024).
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.
Visual and acoustic stimuli generated by the presence and operation
of assorted DERP construction equipment (e.g., auger, chainsaw, crane,
impact pile driver, vibratory pile driver, concrete saw, dump truck,
excavator, etc.), as well as the presence of personnel, has the
potential to cause Level B harassment of pinnipeds in the DERP project
area where harbor seal haulout sites have been identified (see figure
1). This section includes a summary and discussion of the ways that the
types of stressors associated with the specified activity (e.g.,
construction) have been observed to impact marine mammals. This
discussion may also include reactions that we consider to rise to the
level of a take and those that we do not consider to rise to the level
of a take. This section provides background information on potential
effects of these activities. For a discussion of the manner in which
the mitigation measures will be implemented, and how the mitigation
measures will shape the anticipated impacts from this specific
activity, see the Proposed Mitigation section below.
Disturbance may result in reactions ranging from an animal simply
[[Page 39352]]
becoming alert to the presence of machinery (e.g., turning the head,
assuming a more upright posture) to flushing from the haulout site into
the water. NMFS does not consider the lesser reactions to constitute
behavioral harassment, or Level B harassment takes, but rather assumes
that pinnipeds that flee some distance or change the speed or direction
of their movement in response to the presence of researchers are
behaviorally harassed. Animals that respond to stimuli associated with
the specified activity by becoming alert, but do not move or change the
nature of locomotion as described, are not considered to have been
subject to behavioral harassment.
Visual disturbance has the potential to directly affect harbor
seals that haul out or otherwise utilize the environment near the
project area. It is possible that seals flushed from haulout sites at
Duckabush will move to other nearby haulout sites in Hood Canal, the
closest of which are Dosewallips (3.5 miles (5.63 km) northeast),
Quilcene Bay 7 miles (11.26 km) northeast), and Hamma Hamma (8.5 miles
(13.68 km) southwest). Alternatively, harbor seals may also habituate
to consistently elevated sound levels or visual disturbances and flush
from haulout sites less often due to in-air noise disturbances
(Bankhead et al. 2023).
There are few studies that have examined the influence of visual
disturbance on the haulout behavior of harbor seals and we are aware of
none that specifically investigate impacts from land-based construction
operations. Reactions to visual disturbance, if any, have been
documented and are dependent on species, state of maturity, experience,
current activity, reproductive state, time of day, and many other
factors (Richardson et al., 1995; Southall et al., 2007; Weilgart
2007). These behavioral reactions from marine mammals are often shown
as: 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 responses or aggressive
behavior; avoidance of areas; and/or flight responses (e.g., pinnipeds
flushing into the water from haulouts or rookeries). If a marine mammal
does react briefly to a disturbance 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 visual stimuli 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). Numerous studies have shown that human activity can
flush harbor seals off haulout sites (Calambokidis et al., 1991; Suryan
and Harvey, 1999). The Hawaiian monk seal (Neomonachus schauinslandi)
has been shown to avoid beaches that have been disturbed often by
humans (Kenyon 1972). In one case, human disturbance appeared to cause
Steller sea lions to desert a breeding area at Northeast Point on St.
Paul Island, Alaska (Kenyon 1962).
Scientists have documented that pinnipeds exhibit altered behavior
such as increased swimming speed, erratic movement, and active
avoidance behavior (Acevedo, 1991; Trites and Bain, 2000), disruption
of normal social behaviors (Lusseau 2003; 2006), and the shift of
behavioral activities that may increase energetic costs (Constantine et
al., 2003).
Henry and Hammil (2001) conducted a study to measure the impacts of
small boats (i.e., kayaks, canoes, motorboats and sailboats) on harbor
seal haulout behavior in Metis Bay, Quebec, Canada. During that study,
the authors noted that the most frequent disturbances (n=73) were
caused by lower speed, lingering kayaks, and canoes (33.3 percent) as
opposed to motorboats (27.8 percent) conducting high-speed passes. The
seals' flight reactions could be linked to a surprise factor by kayaks
and canoes, which approach slowly, quietly, and low on the water making
them look like predators. However, the authors note that, once the
animals were disturbed, there did not appear to be any significant
lingering effect on the recovery of numbers to their pre-disturbance
levels. In conclusion, the study showed that boat traffic at current
levels had only a temporary effect on the haul out behavior of harbor
seals in the Metis Bay area.
In 2004, Acevedo-Gutierrez and Johnson (2007) evaluated the
efficacy of buffer zones for watercraft around harbor seal haulout
sites on Yellow Island, Washington. The authors estimated the minimum
distance between the vessels and the haulout sites; categorized the
vessel types; and evaluated seal responses to the disturbances. During
the course of the 7-weekend study, the authors recorded 14 human-
related disturbances that were associated with stopped powerboats and
kayaks. During these events, hauled out seals became noticeably active
and moved into the water. The flushing occurred when stopped kayaks and
powerboats were at distances as far as 453 and 1,217 ft (138 and 371 m)
away, respectively. The authors note that the seals were unaffected by
passing powerboats, even those approaching as close as 128 ft (39 m),
possibly indicating that the animals had become tolerant of the brief
presence of the vessels and ignored them. The authors reported that, on
average, the seals quickly recovered from the disturbances and returned
to the haulout site in less than or equal to 60 minutes. Seal numbers
did not return to pre-disturbance levels within 180 minutes of the
disturbance less than one quarter of the time observed. The study
concluded that the return of seal numbers to pre-disturbance levels and
the relatively regular seasonal cycle in abundance throughout the area
counter the idea that disturbances from powerboats may result in site
abandonment (Johnson and Acevedo-Gutierrez, 2007).
There are other ways in which disturbance, as described previously,
could result in more than Level B harassment of marine mammals. They
are most likely to be consequences of stampeding, a potentially
dangerous occurrence in which large numbers of animals succumb to mass
panic and rush away from a stimulus. These situations are: (1) Falling
when entering the water at high-relief locations; (2) extended
separation of mothers and pups; and (3) crushing of pups by larger
animals during a stampede. However, NMFS does not expect any of these
scenarios to occur at the project area since (1) there are no high
exposure topographical conditions that could result in significant
falls; (2) mother pup separation is not expected (see below); and (3)
there are no larger pinniped species present that could injure or kill
pups in a stampede.
While pups are able to identify and follow their mothers in the
water (Stein 1989), they are more likely to become separated and
possibly stranded after flushing events (Thi[eacute]ry and Kiszka 2005,
Osinga et al. 2012). However, mother-pup separation from construction
noise related flushing has been presumed to be unlikely (CDFW 2021). It
is more likely that flushed mother-pup pairs will remain together but
not return to their original haulout site and will instead seek out a
different undisturbed site (Jansen et al. 2014, Suryan and Harvey 1999,
Ruiz-Mar et al. 2022).
The effects of repeated disturbance may differ for non-pup and non-
mother seals. Harbor seals typically demonstrate haulout site fidelity
(Yochem et al. 1987, Paterson et al. 2019). Most seals utilize one
primary
[[Page 39353]]
haulout site and while they may spend several hours in the water after
flushing, they will tend to haul out again at that same site. This may
result in loss of fitness and increased predation risk for seals
returning to Duckabush estuary throughout the construction period as
they could be subject to disturbances whenever work is occurring.
However, there is evidence that harbor seals that regularly haul out at
locations with high anthropogenic activity and elevated in-air noise
will habituate to those disturbances (Bankhead et al. 2023). Although
it is unclear how long this habituation takes, seals that regularly
haul out at Duckabush River estuary may become accustomed to the
regular in-air construction noise and flush less frequently as
construction progresses.
Furthermore, there would be no risk of vessel strike of pinnipeds
since no boats are used during construction. Given the nature of the
proposed activities (i.e. construction activities at a distance) in
conjunction with proposed mitigation measures, NMFS is confident that
any anticipated effects would be in the form of behavioral disturbance
only. NMFS considers the risk of injury, serious injury, or mortality
to marine mammals to be very low.
There are minor negative impacts to habitat associated with the
proposed activity. There may be a slight increase in turbidity during a
limited number of construction activities. However, nearly all
construction operations would be land-based, with no impact on
turbidity. Furthermore, work crews would minimize these effects through
various methods, including performing work at low tide when possible,
and installing silt fences and floating booms around any in-water work.
The proposed project would restore several ecological processes,
including sediment transport, freshwater input, and tidal exchange. An
increase in suitable haulout locations would be likely due to marsh
accretion and channel migration. Restoration of the estuary would
benefit habitat for fish species which serve as prey species for harbor
seals. Elevating and setting back Highway 101 farther away from haulout
sites will decrease the amount of anthropogenic noise and visual
disturbance experienced by harbor seals. Given this information, NMFS
does not expect that the proposed activity would have any negative
effects on marine mammal habitat or prey species at the Duckabush River
estuary and that there would be a long-term positive benefit.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
proposed for authorization through the LOA, 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 (16 U.S.C. 1362(18) 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, in the form
of behavioral reactions for individual marine mammals resulting from
exposure to visual or acoustic disturbance associated with various
construction equipment and personnel or protected species observers
(PSOs). Based on the nature of the activity, Level A harassment is
neither anticipated nor proposed to be authorized.
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.
Acoustic Impacts
There is very limited potential for impacts from underwater noise
to result in harassment of pinnipeds. As noted previously, nearly all
construction would be land-based. Pile driving within a wetted channel
is only planned at a single location among the river channels and other
permanently inundated areas in the project area. A vibratory driver
would be used to remove bridge piers within the wetted river channel
during the demolition of the existing north Highway 101 bridge (see
figure 12 in the USACE's application). The USACE, in consultation with
NMFS, concluded that the meandering path of the river at this location
would adequately prevent direct propagation of underwater noise to the
nearest haulout site and, while it is possible that underwater noise
from pile-driving could potentially result in take, it is not
considered likely and would be adequately addressed through our
consideration of the effects of other, more likely causes of
disturbance to seals.
All other vibratory and impact pile driving would occur on solid
ground and will either occur during low tide or will be isolated from
water using the existing Highway 101 causeway, cofferdams, or aquadams,
thereby dampening propagation of sound through the substrate. For in-
air sounds, NMFS has established a threshold of received levels above
90 dB re 20 [mu]Pa (rms) that could result in behavioral harassment
(Level B harassment) of harbor seals. The actual measured in-air Lmax
(dBA) at 50 feet (15.24 m) for vibratory and impact pile drivers is 101
dB (FHWA 2017). Noise attenuates as the distance from the source of the
noise increases. A general equation shows noise propagation loss as 7.5
dB for each doubling of distance in areas where landscape features and
vegetation exist (WSDOT 2020). Additionally, the following equation can
be used to determine construction noise levels at a specific distance
from the source (WSDOT 2020):
Lmax = the Construction Lmax at 50 feet (15.24 m)--25 * Log(D/Do).
In this equation, Lmax = the highest A-weighted sound level occurring
during a noise event during the time that noise is being measured; 50
feet (15.24 m) = the reference measurement distance; and D = the
distance from the noise source.
Do = the reference measurement distance (50 feet (15.24 m) in this
case). Using this equation, a 101 dB vibratory or impact pile driver
will attenuate to 90 dB after 54 m (177 ft). The nearest vibratory pile
driving site in the project area is about 265 m (870 ft) from known
harbor seal haulout sites at the Duckabush River estuary. Therefore,
Level B harassment from airborne noise could only occur if a seal left
their haulout site and proceeded to within 54 m (177 ft) of an active
pile driving site.
Marine Mammal Occurrence
In this section we provide information about the occurrence of
marine mammals, including abundance or other relevant information which
will inform the take calculations.
WDFW conducts regular aerial surveys of hauled out harbor seals in
the Hood Canal, typically restricting monitoring to the peak of the
pupping period and the window two hours before and after high tides to
maximize the number of individuals on land. The USACE utilized
unpublished WDFW data from 2021-2023 (USACE, 2024) as well as aerial
survey information of hauled out harbor seals at Duckabush River in
2013 and 2014 (Jeffries et al.
[[Page 39354]]
2014) to estimate harbor seal abundance. Table 2 summarizes the results
from both surveys.
From 2021-2023, an average of 86 seals hauled out at the Duckabush
River estuary during the pupping season, with a maximum daily count of
130 seals. Harbor seal counts during the molting season peaked at 23
per day although data during this period is limited. Available count
data outside of the critical life history periods of pupping and
molting season is also limited but indicated scarce usage of Duckabush
River estuary haulout sites during the daytime for this period.
Table 2--Harbor Seal Counts at Duckabush Estuary
----------------------------------------------------------------------------------------------------------------
Date Year Pups Adults Total count
----------------------------------------------------------------------------------------------------------------
February 4...................................... 2014 0 0 \a\0
March 13........................................ 2013 0 0 \a\0
March 21........................................ 2013 0 7 \a\7
July 23......................................... 2013 0 0 \a\0
August 26....................................... 2013 17 60 \a\77
August 27....................................... 2013 21 78 \a\99
September 21.................................... 2023 3 127 \b\130
September 22.................................... 2023 2 94 \b\96
September 28.................................... 2021 2 85 \b\87
September 29.................................... 2022 4 111 \b\115
October 17...................................... 2023 1 3 \a\4
November 6...................................... 2013 0 23 \a\23
November 8...................................... 2013 0 13 \a\13
----------------------------------------------------------------------------------------------------------------
Count source: \a\--Jeffries et al. (2014), \b\--WDFW (unpublished)
Take Estimation
Here, we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and proposed for authorization.
Since there is no previous data on how harbor seals react to
construction activities at the Duckabush River estuary, take rates from
an analogous project were utilized to estimate take. The Elkhorn Slough
Tidal Marsh Restoration Project in Monterey County, California is a
similar wetland restoration project involving land-based construction
near harbor seal haulout sites (CDFW 2021). NMFS has issued IHAs for
all three phases of this project, all authorizing take by Level B
harassment of harbor seals resulting from similar disturbances as
considered here, including the use of haul trucks, dozers, backhoes,
loaders, and excavators. The objective of both projects is to restore
tidal marshes that have been altered by past land use practices. The
Elkhorn Slough project is in the process of restoring 147 wetland acres
while the DMMP project would restore 38 acres. Impacts from both
projects include the potential for Level B harassment of harbor seals
by visual disturbance and in-air noise.
Due to the limited harbor seal survey data at the Duckabush River
estuary, a basic model was used to estimate seal counts throughout the
year. Using the survey data from table 3, it was assumed that there is
an increase or decrease in the number of seals, as defined by use of a
linear function (instead of a block function). This means that every
day of the year has a unique number of seals based on a linear
relationship between a specific date on which a certain number of seals
were actually recorded and the next specific date on which seals were
recorded. For example, in table 2, there were 99 total seals (pups and
adults) recorded on August 27, while 130 total seals were recorded on
September 21. Using a linear relationship, it was assumed that 100.24
seals were observed on August 28 (one day after the date of recording--
August 27 with 99 seals) observation, while 128.76 seals were observed
on September 20 (one day before the next actual date of recording--
September 20 with 130 seals). This methodology allows each day of the
year to have a unique number of assumed seals present. The USACE
developed a detailed project schedule which identified the number of
workdays expected to occur for each year of the proposed authorization,
ranging from a minimum of 111 days in 2026 to a maximum of 262 days in
2029. The USACE further identified the specific dates of each year that
work is planned. The sum of the number of observed seals associated
with each specified work date was then calculated for each year of the
proposed authorization.
Monitoring reports from the Elkhorn Slough Tidal Marsh Restoration
Project showed that nine percent of harbor seals present were recorded
as takes in Phase I of the Elkhorn Slough Tidal Marsh Restoration
Project while 0.7 percent were recorded as takes in Phase II.
Monitoring data from Phase III of the project is not available, so the
conservative assumption of nine percent take rate will be used to
estimate realized take in this proposed rule. The sum of the number of
assumed seals present calculated for each year, as described
previously, was then multiplied by nine percent to provide the
calculated annual take estimates shown in table 3.
Table 3--Proposed Takes by Level B Harassment Annually
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Estimated take
Year NMFS stock Predicted work dates Predicted work total seals by Level B Take % of
abundance days exposed harassment stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
2026...................................... 3,363 July 30-December 31......... 111 4,883 440 13.1
2027...................................... January 1-December 31....... 261 5,331 480 14.3
2028...................................... January 1-December 31....... 260 5,310 478 14.2
2029...................................... January 1-November 7........ 262 5,090 458 13.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 39355]]
To inform both the negligible impact analysis and the small numbers
determination, NMFS assesses the maximum number of takes of marine
mammals that could occur within any given year during the effective LOA
period. In this calculation, the maximum estimated number of Level B
harassment takes in any one year (480 in 2027) is used to yield the
highest number of estimated take that could occur in any year (table
3). Table 3 also depicts the number of takes requested by the USACE and
proposed by NMFS relative to the abundance of the Hood Canal stock.
Proposed Mitigation
In order to issue an LOA under section 101(a)(5)(A) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable adverse
impact on the species or stock and its habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stock for
taking for certain subsistence uses (latter not applicable for this
action). NMFS regulations require applicants for incidental take
authorizations to include information about the availability and
feasibility (economic and technological) of equipment, methods, and
manner of conducting the activity or other means of effecting the least
practicable adverse impact upon the affected species or stocks, and
their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
The mitigation measures described in the following sections would
apply to the USACE construction activities.
The USACE shall conduct training between supervisors and crews, the
PSO team, and relevant USACE staff prior to the start of DERP
construction so that responsibilities, communication procedures,
monitoring protocols, and operational procedures are clearly
understood. If new construction personnel are added to the project, the
contractor shall ensure that the personnel receive the mandatory
training before starting work.
Visual Monitoring
Required monitoring must be conducted by dedicated, trained, NMFS-
approved PSO(s). PSOs shall establish and monitor a 300-meter zone
around all construction activities. A PSO will be present every day
when construction activities occur in or near the DERP area. A 30-
minute pre-clearance observation period will occur prior to the start
of construction activities. Construction may not start until the work
area is cleared by the PSOs. Monitoring will occur until 30 minutes
after construction is complete. One or more PSOs will be stationed at
location(s) offering the best view of four haulout sites and the
project area as described in the USACE's marine mammal monitoring plan
(MMMP).
If environmental conditions deteriorate such that marine mammals
within the entire shutdown zone (10 m) would not be visible (e.g., fog,
heavy rain), construction must be delayed until the PSO is confident
marine mammals within the shutdown zone could be detected.
Pre-Construction Clearance and Ramp-Up
A 30-minute pre-clearance observation period must occur prior to
the start of ramp-up and construction activities. The USACE must adhere
to the following pre-clearance and ramp-up requirements: (i)
Construction activities must not be initiated if any marine mammal is
within 10 m of planned operations. If a marine mammal is observed
within 10 m of planned operations during the 30-minute pre-clearance
period, ramp-up must not begin until the animal(s) has been observed
exiting the zones or until an additional time period has elapsed with
no further sightings (ii) Construction activities may not be initiated
within 100 meters of a mother-pup pair in the water.
To reduce the risk of potentially startling marine mammals with a
sudden intensive sound, the contractor will ramp-up construction
activities gradually each day by moving around the project area and
starting equipment one at a time.
Shutdown Requirements
For heavy machinery work, if a marine mammal comes within 10 meters
of such operations, operations must cease work or will not be initiated
until the marine mammal has moved outside the 10-meter buffer. During
pupping season (August 1-October 31) construction activities may not be
initiated: (1) Within 300 meters of a mom/pup pair that is hauled out,
or (2) within 100 meters of a mom/pup pair in the water. If a pup less
than 1 week old (neonate) comes within 20 meters of where heavy
machinery is working, construction activities in that area must be
shutdown or delayed until the pup has left the area.
Activities must cease if a marine mammal species for which take was
not authorized, or a species for which authorization was granted but
the authorized number of takes have been met, is observed by PSOs
approaching or within the Level B harassment zone. Activities must not
resume until the animal is confirmed to have left the area.
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 adverse 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 LOA for an activity, section 101(a)(5)(A) 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) require that requests for
authorizations 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:
[[Page 39356]]
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
PSO monitoring during construction will occur from vantage points
along the current Highway 101 elevated causeway that allow monitors to
observe any seals hauling out in the estuary as shown in the Marine
Mammal Monitoring Plan. The primary observation locations shall be on
the northern Highway 101 bridge and at the head of the existing estuary
access path that will become the temporary parking platform. Monitors
may also traverse along the Highway 101 causeway to obtain clearer
views of approaching or hauled-out seals, such as from the southern
Highway 101 bridge or North Parking Area. The observation area for the
restoration area shall be accessed by foot and used to provide a
vantage point of the construction area and Duckabush River estuary.
This observation area includes all restoration areas within 300 meters
of harbor seal haulout sites.
Marine mammal monitoring during construction activities must be
conducted by qualified, NMFS approved PSOs, in accordance with the
following:
PSOs must be independent of the activity contractor (for
example, employed by a subcontractor) and have no other assigned tasks
during monitoring periods.
At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization.
Other PSOs may substitute 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.
PSOs must be approved by NMFS prior to beginning any
activity subject to this proposed rule.
PSOs should have the following additional qualifications:
Ability to conduct field observations and collect data
according to assigned protocols;
Experience or training in the field identification of
marine mammals, including the identification of behaviors;
Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
Writing skills sufficient to prepare a report of
observations including but not limited to: (1) the number and species
of marine mammals observed; (2) dates and times when in-water
construction activities were conducted; (3) dates, times, and reason
for implementation of mitigation (or why mitigation was not implemented
when required); and (4) 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.
Pre- and Post-Construction Daily Censuses
A census of marine mammals in the project area and the area
surrounding the project will be conducted 30 minutes prior to the
beginning of construction on monitoring days, and again 30 minutes
after the completion of construction activities. Data collected during
the pre-and post-construction daily censuses will include:
Environmental conditions (weather condition, tidal
conditions, visibility, cloud cover, air temperature and wind speed);
Numbers of each marine mammal species spotted;
Location of each species spotted, including distance from
construction activity;
Status (in water or hauled-out); and
Behavior.
Hourly Counts
The USACE will conduct hourly counts of animals hauled out and in
the water. Data collected will include:
Numbers of each species;
Location of species, whether hauled out or in the water;
and distance from construction activities;
Time;
Tidal conditions;
Time construction activities start and end;
Primary construction activities occurring during past
hour;
Any noise or visual disturbance;
Number of mom/pup pairs and neonates observed;
Notable behaviors, including foraging, grooming, resting,
aggression, mating activity, and others;
PSOs will take notes including any of the following information to
the extent it is feasible to record:
Age-class;
Sex;
Unusual activity or signs of stress; and
Any other information worth noting
PSOs will record reaction observed in relation to construction
activities including:
Tally of each reaction;
Time of reaction;
Concurrent construction activity (including duration) and
assumed cause (whether related to construction activities or not) and
observer determination as to the source of disturbance, to the extent
possible;
Location of animal during initial reaction and distance
from the noted disturbance;
Direction of movement;
Activity before and after disturbance;
Status (in water or hauled out) before and after
disturbance; and
Coded reaction as shown in table 4.
[[Page 39357]]
Table 4--Marine Mammal Reaction Codes
------------------------------------------------------------------------
Level Type of response Definition
------------------------------------------------------------------------
1............ Alert............... Head orientation or brief movement
in response to disturbance, which
may include turning head towards
the disturbance, craning head and
neck or craning head and neck
while holding the body rigid in a
u-shaped position, changing from a
lying to a sitting position, or
brief movement of less than twice
the animal's body length. Alerts
would be recorded, but not counted
as a `take'.
2 *.......... Movement............ Movements away from the source of
disturbance, ranging from short
withdrawals at least twice the
animal's body length to longer
retreats, or if already moving a
change of direction of greater
than 90 degrees.
3 *.......... Flush............... All retreats (flushes) to the
water.
------------------------------------------------------------------------
* Only Levels 2 and 3 are considered take under the MMPA, whereas Level
1 is not.
Reporting
The USACE must submit a draft monitoring report to NMFS within 90
calendar days of the completion of each construction year. A draft
comprehensive 5-year summary report must also be submitted to NMFS
within 90 days of the end of the effective period of the LOA. The
reports must detail the monitoring protocol and summarize the data
recorded during monitoring. Final annual reports and the final
comprehensive report must be prepared and submitted within 30 days
following resolution of any NMFS comments on the draft report. If no
comments are received from NMFS within 30 days of receipt of the draft
report, the report must be considered final. If comments are received,
a final report addressing NMFS comments must be submitted within 30
days after receipt of comments. The annual and final marine mammal
monitoring reports 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
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: (1) name of PSO who sighted the animal(s) and PSO location
and activity at time of sighting; (2) time of sighting; (3)
identification of the animal(s) (e.g., genus/species, lowest possible
taxonomic level, or unidentified); (4) 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); (5)
estimated number of animals (min/max/best estimate); (6) estimated
number of animals by cohort (e.g., adults, juveniles, neonates, group
composition, etc.); (7) animal's closest point of approach; and (8)
description of any marine mammal behavioral observations (e.g.,
observed behaviors such as feeding or traveling), including an
assessment of behavioral responses thought to have resulted from the
activity (e.g., no response or changes in behavioral state such as
ceasing feeding, changing direction, flushing, or breaching);
Number of marine mammals detected within the harassment
zones; and
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.
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 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).
The USACE has requested, and NMFS is proposing to authorize take,
by Level B harassment, of harbor seals from the Washington Inland Hood
Canal stock. No injuries or mortalities are anticipated to occur as a
result of the DERP project and none are proposed to be authorized.
Effects on individuals that are taken by Level B harassment, on the
basis of reports in the literature, would likely be localized and
limited to reactions such as alerts or movements away from the
construction area, including flushing into the water. Most likely,
individuals, if affected at all will simply move away from the visual
or acoustic stimulus and be temporarily displaced from the areas.
Repeated exposures of individuals to relatively low levels of
visual and sound disturbance outside of preferred habitat areas are
unlikely to significantly disrupt critical behaviors or result in
permanent abandonment of the haulout site. Even repeated Level B
harassment of some small subset of the overall stock is unlikely to
result in any significant realized decrease in viability for the
affected individuals, and thus would not result in any adverse impact
to the stock as a whole. Level B harassment will be reduced to the
level of least practicable adverse impact through use of mitigation
measures described herein. If visual disturbance and low-level sound
produced by project activities is sufficiently disturbing, animals are
[[Page 39358]]
likely to simply avoid the area while the activity is occurring.
No adverse effects to habitat or prey species are anticipated
during or after construction has ended since almost the entirety of
work would be land-based. There is other suitable habitat nearby where
harbor seals could temporarily relocate. The restoration of the marsh
habitat will have no adverse effect on marine mammal habitat, but
possibly a long-term beneficial effect on habitat and harbor seals by
improving ecological function of the slough, including increased prey
availability, higher species diversity, larger fish, and improved
habitat.
Harbor seals are not listed as threatened or endangered under the
ESA and there are no known areas of biological importance in the
project area. Furthermore, the population of the Hood Canal stock of
harbor seals has been relatively stable over the past three decades
(Pearson et al. 2024).
Taking into account the planned mitigation measures, effects to
marine mammals are generally expected to be restricted to short-term
changes in behavior or temporary displacement from haulout sites. There
are other haulout areas for pinnipeds to temporarily relocate, and
marine mammals are expected to return to the area shortly after
activities cease.
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 harbor seals (or any
other species) through effects on annual rates of recruitment or
survival:
No serious injury, mortality or Level A harassment is
anticipated or proposed to be authorized;
Effects of the activities would be limited to localized
behavioral changes and temporary displacement;
Nominal adverse impacts to pinniped habitat are
anticipated while improved ecological processes in the estuary would
result in positive effects to habitat;
No biologically important areas have been identified in
the project area; and
Mitigation measures are anticipated to be effective in
minimizing the number and severity of takes by Level B harassment,
which are expected to be localized.
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 maximum number of individuals
taken in any year 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 maximum annual 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 3 demonstrates the maximum number of Level B harassment
events per year. Our analysis shows that no more than 13.4 percent of
harbor seals could be taken by Level B harassment. The numbers of
animals proposed to be taken for these stocks would be considered small
relative to the relevant stock's abundances, even if each estimated
taking occurred to a new individual--an extremely unlikely scenario.
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals would be taken relative to the population
size of the affected species or stocks.
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.
Adaptive Management
The regulations governing the take of marine mammals incidental to
the USACE's construction activities would contain an adaptive
management component. The reporting requirements associated with this
proposed rule, if adopted, are designed to provide NMFS with monitoring
data from completed projects to allow consideration of whether any
changes are appropriate. The use of adaptive management allows NMFS to
consider new information from different sources to determine (with
input from the USACE regarding practicability) on an annual or biennial
basis if mitigation or monitoring measures should be modified
(including additions or deletions). Mitigation measures could be
modified if new data suggests that such modifications would have a
reasonable likelihood of reducing adverse effects to marine mammals and
if the measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or LOAs
issued pursuant to these regulations.
Endangered Species Act
Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.)
requires that each Federal agency insure that any action it authorizes,
funds, or carries out is not likely to jeopardize the continued
existence of any endangered or threatened species or result in the
destruction or adverse modification of designated critical habitat. To
ensure ESA compliance for the issuance of proposed rules, 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.
Request for Information
NMFS requests interested persons to submit comments, information,
and suggestions concerning the USACE's request and the proposed
regulations (see ADDRESSES). All comments germane to this rulemaking
will be reviewed and evaluated as we prepare a final rule and make
final determinations on whether to issue the requested authorization.
This proposed rule and referenced documents provide all environmental
information relating to our proposed action for public review.
[[Page 39359]]
Classification
The Office of Management and Budget has determined that this
proposed rule is not significant for purposes of Executive Order 12866.
This proposed rule is not an Executive Order 14192 regulatory action
because this rule is not significant under Executive Order 12866.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
The USACE is the sole entity that would be subject to the requirements
in these proposed regulations, and the USACE is not a small
governmental jurisdiction, small organization, or small business, as
defined by the RFA. Therefore, a regulatory flexibility analysis is not
required and none has been prepared.
This proposed rule does not contain a collection-of-information
requirement subject to the provisions of the Paperwork Reduction Act
(PRA) because the applicant is a Federal agency.
Dated: August 13, 2025.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
List of Subjects in 50 CFR Part 217
Administrative practice and procedure, Exports, Fish, Imports,
Marine mammals, Penalties, Reporting and recordkeeping requirements,
Transportation, Wildlife.
For the reasons set forth in the preamble, NMFS proposes to amend
50 CFR part 217 as follows:
PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Add subpart Y to part 217 to read as follows:
Subpart Y--Taking of Marine Mammals Incidental to Specified
Activities; Taking Marine Mammals Incidental to the Duckabush
Estuary Restoration Project in Washington
Sec.
217.240 Specified activity and geographical region.
217.241 Effective dates.
217. 242 Permissible methods of taking.
217. 243 Prohibitions.
217. 244 Mitigation requirements.
217. 245 Requirements for monitoring and reporting.
217. 246 Letters of Authorization.
217. 247 Renewals and modifications of Letters of Authorization.
217.248-217.249 [Reserved]
217.240 Specified activity and geographical region.
(a) Regulations in this subpart apply only to the United States
Army Corps of Engineers (USACE) and those persons it authorizes or
funds to conduct activities on its behalf for the taking of marine
mammals that occur in the areas outlined in paragraph (b) of this
section and that occur incidental to construction activities, including
maintenance and replacement of piles, as designated in the Duckabush
Estuary Restoration Project in Washington. Requirements imposed on the
USACE pursuant to this subpart must be implemented by those persons it
authorizes or funds to conduct activities on its behalf.
(b) The taking of marine mammals by the USACE may be authorized in
a Letter of Authorization (LOA) only if it occurs as part of the
Duckabush Estuary Restoration Project in Washington.
Sec. 217.241 Effective dates.
Regulations in this subpart are effective from July 30, 2026
through July 29, 2031.
Sec. 217.242 Permissible methods of taking.
Under an LOA issued pursuant to Sec. Sec. 216.106 of this chapter
and 217.246 of this chapter, the Holder of the LOA (hereinafter
``USACE'') may incidentally, but not intentionally, take marine mammals
within the area described in Sec. 217.240 (b) by harassment associated
with construction activities, provided the activity is in compliance
with all terms, conditions, and requirements of the regulations in this
subpart and the applicable LOA.
Sec. 217.243 Prohibitions.
(a) Except for the takings contemplated in Sec. 217.242 and
authorized by an LOA issued under this subpart, it is unlawful for any
person to do any of the following in connection with the activities
described in Sec. 217.240:
(1) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under this subpart;
(2) Take of any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner
other than as specified;
(4) Take a marine mammal specified in such LOA if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS
determines such taking results in an unmitigable adverse impact on the
species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
Sec. 217.244 Mitigation requirements.
(a) When conducting the activities identified in Sec. 217.240(a),
the mitigation measures contained in any LOA issued under this subpart
must be implemented. These mitigation measures include but are not
limited to:
(1) A copy of this LOA must be in the possession of the USACE,
supervisory construction personnel, lead protected species observers
(PSOs), and any other relevant designees of the USACE operating under
the authority of this LOA at all times that activities subject to this
LOA are being conducted.
(2) The USACE shall conduct training between supervisors and crews,
the PSO team, and relevant USACE staff prior to the start of
construction activity subject to this rule, so that responsibilities,
communication procedures, monitoring protocols, and operational
procedures are clearly understood. New personnel joining during the
project must be trained in the aforementioned matters prior to
commencing work.
(3) The USACE must employ PSOs and establish monitoring locations
as described in the Marine Mammal Monitoring Plan. The USACE must
monitor the Project Area to the maximum extent possible based on the
required number of PSOs, required monitoring locations, and
environmental conditions.
(4) Monitoring must take place from 30 minutes prior to initiation
of pile driving activity (i.e., pre-start clearance monitoring) through
30 minutes post-completion of construction activity.
(5) Pre-start clearance monitoring must be conducted during periods
of visibility sufficient for the lead PSO to determine that the
shutdown zones are clear of marine mammals. Construction activity may
commence following 30 minutes of observation when the shutdown zones
are clear of marine mammals.
(6) Construction activities must stop if a marine mammal is in a
shutdown zone and may not resume until a marine mammal exits the
shutdown zone.
[[Page 39360]]
(7) If construction activity is delayed or halted due to the
presence of a marine mammal, the activity may not commence or resume
until either the animal has voluntarily exited and been visually
confirmed beyond the shutdown zone.
(8) The USACE must conduct a gradual increase (i.e. ramp-up) to
begin construction each day by moving around the project area and
starting equipment one at a time, not all at once.
(9) The USACE must avoid direct physical interaction with marine
mammals during construction activity. If a marine mammal comes within
10 meters (m) of such activity operations must cease to avoid direct
physical interaction and can only resume after the animal has left the
10 m zone.
(10) If a pup less than one week old comes within 20 m of where
heavy machinery is working, operations must cease and can only resume
after the animal has left the 20 m zone.
(11) During pupping season (August 1 through October 31),
construction activities may not be initiated within 300 m of a mom/pup
pair that is hauled out or within 100 m of a mom/pup pair in the water.
(b) [Reserved]
Sec. 217.245 Requirements for monitoring and reporting.
(a) The USACE must submit a Marine Mammal Monitoring Plan to NMFS
for approval at least 90 days in advance of construction. Marine mammal
monitoring must be conducted in accordance with the conditions in this
section and the approved Marine Mammal Monitoring Plan.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs,
in accordance with the following conditions:
(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
(i.e., 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) PSOs must record all observations of marine mammals as
described in the Marine Mammal Monitoring Plan, regardless of distance
from the pile being driven. PSOs shall document any behavioral
reactions in concert with distance from piles being driven or removed.
(c) A census of marine mammals in the project area and the area
surrounding the project must be conducted 30 minutes prior to the
beginning of any construction day, and again 30 minutes after the
completion of construction activities. Data collected during the pre-
and post-construction daily censuses must include:
(1) Environmental conditions (weather condition, tidal conditions,
visibility, cloud cover, air temperature and wind speed);
(2) Numbers of each marine mammal species spotted;
(3) Location of each species spotted, including distance from
construction activity;
(4) Status (in water or hauled-out); and
(5) Behavior
(d) The USACE must conduct hourly counts of animals hauled out and
in the water. Data collected must include:
(1) Numbers of each species;
(2) Location of species; whether hauled-out or in the water; and
distance from construction activities;
(3) Time;
(4) Tidal conditions;
(5) Time construction activities start and end;
(6) Primary construction activities occurring during past hour;
(7) Any noise or visual disturbance;
(8) Number of mom/pup pairs and neonates observed; and
(9) Notable behaviors, including foraging, grooming, resting,
aggression, mating activity, and others;
(e) The USACE must note any of the following information to the
extent it is feasible to record:
(1) Age-class;
(2) Sex;
(3) Unusual activity or signs of stress;
(4) Any other information worth noting;
(f) The USACE must record reaction observed in relation to
construction activities including:
(1) Tally of each reaction;
(2) Time of reaction;
(3) Concurrent construction activity (including duration) and
assumed cause (whether related to construction activities or not) and
whether observer feels the disturbance was visual or acoustic;
(4) Location of animal during initial reaction and distance from
the noted disturbance;
(5) Direction of movement;
(6) Activity before and after disturbance;
(7) Status (in water or hauled out) before and after disturbance;
and
(8) Coded reaction of Level 1--Alert; Level 2--Movement, or Level
3--Flush as defined in the Preamble.
(g) The USACE must submit a draft monitoring report to NMFS within
90 calendar days of the completion of each construction year. A draft
comprehensive 5-year summary report must also be submitted to NMFS
within 90 days of the end of the project. The reports must detail the
monitoring protocol and summarize the data recorded during monitoring.
Final annual reports and the final comprehensive report must be
prepared and submitted within 30 days following resolution of any NMFS
comments on the draft report. If no comments are received from NMFS
within 30 days of receipt of the draft report, the report must be
considered final. If comments are received, a final report addressing
NMFS comments must be submitted within 30 days after receipt of
comments. The reports must contain the informational elements described
at minimum below including:
(1) Information collected in Sec. 247.245 (c)-(f).
(2) All PSO datasheets and/or raw sightings data in electronic
format.
Sec. 217.246 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the USACE must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, the USACE may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the USACE must
apply for and obtain a modification of the LOA as described in Sec.
217.247.
(e) The LOA must set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
[[Page 39361]]
(g) Notice of issuance or denial of an LOA must be published in the
Federal Register within 30 days of a determination.
Sec. 217.247 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. 216.106 of this chapter and Sec.
217.246 for the activity identified in Sec. 217.240(a) may be renewed
or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting that do not change the findings made for the regulations or
result in no more than a minor change in the total estimated number of
takes (or distribution by species or years), NMFS may publish a notice
of proposed LOA in the Federal Register, including the associated
analysis of the change, and solicit public comment before issuing the
LOA.
(c) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.246 for the activity identified in Sec. 217.240 (a) may be
modified by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation,
monitoring, or reporting measures (after consulting with USACE
regarding the practicability of the modifications) if doing so creates
a reasonable likelihood of more effectively accomplishing the goals of
the mitigation and monitoring set forth in the preamble for these
regulations;
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from USACE's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or
studies; and
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
must publish a notice of proposed LOA in the Federal Register and
solicit public comment;
(2) If NMFS determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals specified in a LOA issued pursuant to Sec. 216.106 of this
chapter and Sec. 217.246, a LOA may be modified without prior notice
or opportunity for public comment. Notification would be published in
the Federal Register within 30 days of the action.
Sec. Sec. 217.248-217.249 [Reserved]
[FR Doc. 2025-15629 Filed 8-14-25; 8:45 am]
BILLING CODE 3510-22-P