[Federal Register Volume 85, Number 249 (Tuesday, December 29, 2020)]
[Notices]
[Pages 85589-85602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28752]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RTID 0648-XA741


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to State Route 520 Pontoon Pile 
Removal Project, Aberdeen, Grays Harbor County, Washington

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
the Washington State Department of Transportation (WSDOT) to 
incidentally harass, by Level B harassment, marine

[[Page 85590]]

mammals during pile driving activities associated with the State Route 
520 Pontoon Construction Site--Marine Piling Removal Project in 
Aberdeen, Grays Harbor County, Washington.

DATES: This Authorization is effective for a period of one year, from 
December 21, 2020 through December 20, 2021.

FOR FURTHER INFORMATION CONTACT: Bonnie DeJoseph, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-
marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who engage in a 
specified activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed incidental take authorization may be provided to the public 
for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of the species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of the takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

Summary of Request

    On November 20, 2019, NMFS received a request from WSDOT for an IHA 
to take marine mammals incidental to the removal of 19-steel piles at 
the mouth of the Chehalis River where it enters Grays Harbor, WA. WSDOT 
submitted three revisions, including three between November 2019 and 
July 2020, with the last being deemed adequate and complete on July 30, 
2020. WSDOT subsequently submitted a final update to their application 
on August 17, 2020. Their request is for take of a small number of 
Pacific harbor seals (Phoca vitulina); California sea lions (Zalophus 
californianus); Steller sea lions (Eumetopias jubatus); gray whales 
(Eschrichtius robustus); and harbor porpoises (Phocoena phocoena) by 
Level B harassment only. Neither WSDOT nor NMFS expects serious injury 
or mortality to result from this activity and, therefore, an IHA is 
appropriate.

Description of the Specified Activity

    WSDOT plans to remove 19 steel piles and associated barge launch 
guide appurtenances from the footprint of the casting basin launch 
channel within the Washington State Department of Natural Resources 
(DNR) aquatic easement lease area in Grays Harbor (Figures 1 and 2). 
WSDOT must remove the 19 steel piles on state owned aquatic lands to 
comply with the terms and conditions of the lease agreement with the 
Washington DNR. The piles were used to guide completed pontoons out of 
the casting basin and into Grays Harbor for transport to Lake 
Washington for the replacement of the SR520 floating-bridge. As the 
action of pile driving is used in both the installation and removal of 
piles, the term ``pile driving'' is hereafter used in this document to 
refer to pile removal.
    A vibratory extractor on a crane will be used to remove the piles 
over a seven-day period with one day for mobilization and another day 
for demobilization on either end, for a total of nine days of in-water 
work. Pile removal is estimated to take 14.25 hours over a seven-day 
period with one day for mobilization and another day for demobilization 
on either end, for a total of nine days (Table 1). The IHA is effective 
for a period of one year from date of issuance. WSDOT demarcated their 
in-water work window to 16 July-15 February to protect Endangered 
Species Act (ESA)-listed fish and plans to complete work during the 
current work window. The crane will be located on a barge or flexi 
float, positioned near the piles. Sound in the water from vibratory 
pile driving may result in behavioral disturbance (or Level B 
harassment) of five marine mammal species.
    A detailed description of the planned State Route 520 Pontoon 
Construction Site--Marine Piling Removal project is provided in the 
Federal Register notice for the proposed IHA (85 FR 68042; October 27, 
2020). Since that time, no changes have been made to the planned 
activities. Therefore, a detailed description is not provided here. 
Please refer to that Federal Register notice for the description of the 
specific activity.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TN29DE20.413

BILLING CODE 3510-22-C

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                                                       Table 1--Summary of Pile Driving Activities
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                                                                Estimated
                                                               noise level   Number of   Minutes per   Total time   Piles per     Time per     Activity
               Method                        Pile type          * (dBRMS)      piles         pile       (hours)        day      day (hours)     period
                                                                                                                                              (days) **
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Vibratory Removal...................  48-inch steel pile.....          171            1           45         0.75            1         0.75            1
Vibratory Removal...................  24-inch steel pile.....          162           17           45        12.75            4            3            5
Vibratory Removal...................  18-inch steel pile.....          162            1           45         0.75            1         0.75            1
                                                              ------------------------------------------------------------------------------------------
    TOTAL...........................  .......................  ...........           19           45        14.25            6        14.25            7
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* Origin of project sound source levels discussed in Estimated Take section.
** Pile removal activities will be conducted across 11-hour (at maximum) work days, but a ``day'' of work may not require 11 hours. NMFS increased the
  estimated removal time of the 18 and 48-inch piles from 0.5 day, as proposed by WSDOT, to 1 day, to reflect a more realistic representation of the
  potential schedule; i.e., the potential that the two piles maybe removed on separated days.

    Mitigation, monitoring, and reporting measures are described in 
detail later in this document (please see Mitigation and Monitoring and 
Reporting sections).

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to WSDOT was published 
in the Federal Register on October 27, 2020 (85 FR 68042). That notice 
described, in detail, WSDOT's activity, the marine mammal species that 
may be affected by the activity, and the anticipated effects on marine 
mammals. During the 30-day public comment period, NMFS received 
comments from the Marine Mammal Commission (Commission). Please see the 
Commission's letter for full details regarding their recommendations 
and rationale. The letter is available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-state-
route-520-pontoon-pile-removal-project-aberdeen-grays. A summary of the 
Commission's recommendations as well as NMFS' responses is below.
    Comment 1: The Commission recommended that NMFS re-estimate the (1) 
summer density for Steller sea lions based on adjusting the 2015 pup 
and non-pup data using the trend data from 2017, applying the non-pup 
growth rate to the non-pup counts and the pup growth rates to the pup 
counts, and applying the relevant growth rates up to at least 2020 and 
(2) winter density for California sea lions based on applying the 
relevant growth rates up to at least 2020 and increase the numbers of 
takes accordingly.
    Response: NMFS does not concur and does not adopt the Commission's 
recommendation. The Navy Marine Species Density Database (NMSDD) 
technical report (2019) describes density estimates that were used in 
the Navy's acoustics effects model. To complete the modeling on 
schedule, the density data available at that time from the final 2016 
SAR (Muto et al., 2017) were used. Steller sea lion densities were 
calculated independently for regional populations in Washington, 
Oregon, California, and southeast Alaska, consistent with the stock 
assessment reports. No trend data were (or are currently) estimated for 
pups in Washington, therefore, the non-pup growth rate of 8.77 percent 
per year was used for the entire population. In addition, the baseline 
abundance for Washington sea lions was increased over the abundance 
from the stock assessment report based on data reported in Wiles (2015) 
before the growth rate was applied to project a 2017 abundance. In 
comparison, the non-pup growth rate was used for sea lions in Oregon, 
California, and southeast Alaska because the number of non-pups in each 
population was substantially greater than the number of pups. Using 
separate growth rates for pups and non-pups in all three regions 
results in less than a 1 percent increase in the projected 2017 
abundance. The associated change in the density is minimal and would 
not change the results of NMFS' or WSDOT's analysis of acoustic impacts 
on Steller sea lions.
    Comment 2: The Commission recommends that when NMFS uses Department 
of Navy pinniped densities for all future incidental take 
authorizations, it revise the density estimates based on the most 
recent abundance and trend data from the stock assessment reports 
(SARs) forward-projected into the year that the action proponent's 
activities are proposed to occur.
    Response: NMFS appreciates the Commission's recommendation, and 
will consider it as appropriate when evaluating future requests for 
authorization.
    Comment 3: The Commission recommends NMFS (1) consult with the 
Washington Department of Fish and Wildlife (WDFW) and determine whether 
the seal counts for Grays Harbor are correct as referenced in Jeffries 
et al. (2015), (2) if so, increase the density from 30.85 to 31.39 
seals/and revise the number of harbor seal takes to be 2,196 in the 
notice for issuance of the final authorization and the final 
authorization, and (3) if not, specify that the total seal counts 
originated from WDFW (pers. comm.) rather than Jeffries et al. (2015) 
in the notice for issuance of the final authorization.
    Response: NMFS consulted with WDFW and determined that an updated 
data set of seal counts in Grays Harbor was used to calculate the 
density (personal communication WDFW, 2020), not Jeffries et al. 
(2015). The calculations are detailed in the Estimated Take section. 
WDFW is in the process of error checking and cleaning up the seal 
counts survey data set, and NMFS used the final data set supplied by 
WDFW for the density.
    Comment 4: The Commission recommends that NMFS include in the final 
authorization the requirement that WSDOT conduct pile-removal 
activities during daylight hours only.
    Response: We do concur with the Commission's recommendation and do 
not adopt it. While WSDOT has no intention of conducting pile driving 
activities at night, it is unnecessary to preclude such activity should 
the need arise (e.g., on an emergency basis or to complete driving of a 
pile begun during daylight hours, should the construction operator deem 
it necessary to do so). We disagree with the statement that a 
prohibition on pile driving activity outside of daylight hours is 
necessary to meet the MMPA's least practicable adverse impact standard, 
and the Commission does not justify this assertion.
    Comment 5: The Commission recommends that NMFS include in the final 
authorization the requirement that, if environmental conditions 
deteriorate such that marine mammals within the entire shut-down zone 
would not be visible (e.g., fog, heavy rain), pile-removal activities 
must be delayed until the Protected Species Observer (PSO) is confident 
that marine mammals within the shut-down zone could be detected.
    Response: NMFS concurs with this recommendation and has adopted it.
    Comment 6: The Commission recommends that NMFS revise the final 
authorization to require WSDOT to report the number of individuals of 
each

[[Page 85593]]

species detected within the Level B harassment zones and estimates of 
the numbers of marine mammals taken by Level B harassment, by species. 
The Commission additionally recommends that NMFS require that WSDOT 
include in its monitoring report (1) the estimated percentage(s) of the 
Level B harassment zones that was not visible, (2) an extrapolation of 
the estimated takes by Level B harassment based on the number of 
observed exposures within the Level B harassment zone and the 
percentage of the Level B harassment zone that was not visible (i.e., 
extrapolated takes), and (3) the total number of Level B harassment 
takes based on both the observed and extrapolated takes for each 
species.
    Response: We do not fully concur with the Commission's 
recommendation and do not adopt it as stated. NMFS agrees with the 
recommendation to require WSDOT to report the number of individuals of 
each species detected within the Level B harassment zones and has 
included this requirement in both the proposed and final 
authorizations. (See condition 6(b)(ix).) NMFS does not agree with the 
recommendation to require WSDOT to report estimates of the numbers of 
marine mammals taken by Level B harassment. The Commission does not 
explain why it believes this requirement is necessary, nor does it 
provide recommendations for methods of generating such estimates in a 
manner that would lead to credible results. NMFS does not agree that 
the basic method described in footnote 22 of the Commission's letter 
should be expected to yield estimates of total take such that readers 
of WSDOT's report should have confidence that the estimates are 
reasonable representations of what may have actually occurred. NMFS 
does agree that WSDOT should report the estimated percentage(s) of the 
Level B harassment zones that were not visible, and has included this 
requirement in both the proposed and final authorizations. (See 
condition 6(b)(iii).) These pieces of information--numbers of 
individuals of each species detected within the harassment zones and 
the estimated percentage(s) of the harassment zones that were not 
visible--may be used to glean an approximate understanding of whether 
WSDOT may have exceeded the amount of take authorized. Although the 
Commission does not explain its reasoning for offering these 
recommendations, NMFS' recognizes the basic need to understand whether 
an IHA-holder may have exceeded its authorized take. The need to 
accomplish this basic function of reporting does not require that NMFS 
require applicants to use methods we do not have confidence in to 
generate estimates of ``total take'' that cannot be considered 
reliable.
    Comment 7: The Commission recommends that NMFS reinforce that WSDOT 
must keep a running tally of the total Level B harassment takes, both 
observed and extrapolated, for each species consistent with condition 
4(h) of the final authorization.
    Response: The IHA indicates the number of takes authorized for each 
species. We agree that WSDOT must ensure they do not exceed authorized 
takes, but do not concur with the Commission's repeated recommendations 
regarding the need for NMFS to oversee IHA-holders' compliance with 
issued IHAs, including the use of a ``running tally'' of takes. 
Regardless of the Commission's substitution of the word ``reinforce'' 
for the word ``ensure,'' as compared with its prior recommendations for 
other actions, compliance with the terms of an issued IHA remains the 
responsibility of the IHA-holder.
    Comment 9: The Commission recommends that NMFS refrain from issuing 
a renewal for any authorization unless it is consistent with the 
procedural requirements specified in section 101(a)(5)(D)(iii) of the 
MMPA.
    Response: In prior responses to comments about IHA Renewals (e.g., 
84 FR 52464; October 02, 2019 and 85 FR 53342, August 28, 2020), NMFS 
has explained how the Renewal process, as implemented, is consistent 
with the statutory requirements contained in section 101(a)(5)(D) of 
the MMPA, provides additional efficiencies beyond the use of 
abbreviated notices, and, further, promotes NMFS' goals of improving 
conservation of marine mammals and increasing efficiency in the MMPA 
compliance process. Therefore, we intend to continue implementing the 
Renewal process.

Changes From the Proposed IHA to Final IHA

    Corrections were made to reflect seven possible working days as 
shown in Table 1, with one day for mobilization and another day for 
demobilization on either end, totaling nine days of possible in-water 
work. Marine mammal density information used in take calculations was 
updated from fall to highest seasonal values (Navy 2019) to reflect the 
revised construction schedule as follows: (1) Off-shore Washington 
winter distribution density value of 0.649 California Sea Lions/
kilometer squared (km\2\), and (2) off-shore Washington summer 
distribution density value of 0.1993 Steller Sea Lions/km\2\. See 
Estimated Take section below. We also clarified that harbor seal take 
calculations are based on the updated dataset of WDFW's seal surveys 
(personal communication WDFW 2020). Due to a calculation error, 
corrections were made to total take calculations of harbor porpoises 
from 28 to 31 and to Pacific harbor seals from 1187 to 2157 (see Tables 
9 and 10). Level A harassment zones were corrected as shown in Table 8. 
Finally, NMFS clarified that driving proxies were used for three pile 
sizes because removal values are not available and median source levels 
of vibratory driving proxies were used for 18 and 24-inch piles.

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. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa .gov/national/marine-mammal-protection/marine-
mammal-stock-assessments) and more general information about these 
species (e.g., physical and behavioral descriptions) may be found on 
NMFS's website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species or stocks for which take is expected and 
authorized for this action, and summarizes information related to the 
population or stock, including regulatory status under the MMPA and ESA 
and potential biological removal (PBR), where known. For taxonomy, we 
follow Committee on Taxonomy (2020). PBR is defined by the MMPA as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (as described in 
NMFS's SARs). While no mortality is anticipated or authorized here, PBR 
and annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species

[[Page 85594]]

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's U.S. Pacific SARs (e.g., Carretta, et al., 
2020). All values presented in Table 2 are the most recent available at 
the time of publication and are available in the 2019 SARs (Carretta, 
et al., 2020) (available online at: https://www.fisheries.noaa.gov/
national/marine-mammal-protection/draft-marine-mammal-stock-assessment-
reports).

                                     Table 2--Marine Mammals Potentially Present in the Vicinity of the Study Areas
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                                                                                     ESA/MMPA  status;   Stock abundance (CV,
            Common name                  Scientific name              Stock           strategic  (Y/N)     Nmin, most recent        PBR       Annual  M/
                                                                                            \1\          abundance survey) \2\                  SI \3\
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae:
    Gray whale.....................  Eschrichtius robustus.  Eastern North Pacific.  -, -, N            26,960 (0.05, 25,849,           801          139
                                                                                                         2016).
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Phocoenidae (porpoises):
    Harbor Porpoise................  Phocoena..............  Northern OR/WA Coast..  -, -, N            21,487 (0.44, 15,123,           151        >=3.0
                                                                                                         2011).
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    California sea lion............  Zalophus californianus  U.S...................  -, -, N            257,606 (N/A, 233,515,       14,011         >320
                                                                                                         2014).
    Steller sea lion...............  Eumetopias jubatus....  Eastern...............  -, -, N            43,201 \4\ (see SAR,          2,592          113
                                                                                                         43,201, 2017).
Family Phocidae (earless seals):
    Harbor Seal....................  Phoca vitulina          Oregon/Washington       -, -, N            24,732 \5\ (UNK, UNK,           UND         10.6
                                      richardii.              Coastal.                                   1999).
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\1\ Endangered Species Act (ESA) status: Endangered I, Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
  under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-
  assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ NEST is the best estimate of pup and non-pup counts, which have not been corrected to account for animals at sea during abundance surveys.
\5\ Abundance estimate for this stock is not considered current. PBR is therefore considered undetermined, as there is no current minimum abundance
  estimate for use in calculation. We nevertheless present the most recent abundance estimate, as it represents the best available information for use
  in this document.

    As indicated above, all five species (with five managed stocks) in 
Table 2 temporally and spatially co-occur with the activity to the 
degree that take is reasonably likely to occur, and we are authorizing 
it. All species that could potentially occur in the survey areas are 
included in Table 3-1 of the IHA application.
    A detailed description of the of the species likely to be affected 
by the project, including brief introductions to the species and 
relevant stocks as well as available information regarding population 
trends and threats, and information regarding local occurrence, were 
provided in the Federal Register notice for the proposed IHA (85 FR 
68042; October 27, 2020); since that time, we are not aware of any 
changes in the status of these species and stocks; therefore, detailed 
descriptions are not provided here. Please refer to that Federal 
Register notice for these descriptions. Please also refer to NMFS' 
website (https://www.fisheries.noaa.gov/find-species) for generalized 
species accounts.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. Current data indicate that not all marine 
mammal species have equal hearing capabilities (e.g., Richardson et 
al., 1995; Wartzok & Ketten 1999; Au & Hastings 2008). To reflect this, 
Southall et al., (2007) recommended that marine mammals be divided into 
functional hearing groups based on directly measured or estimated 
hearing ranges on the basis of available behavioral response data, 
audiograms derived using auditory evoked potential techniques, 
anatomical modeling, and other data. Note that no direct measurements 
of hearing ability have been successfully completed for mysticetes 
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described 
generalized hearing ranges for these marine mammal hearing groups. 
Generalized hearing ranges were chosen based on the approximately 65 
decibel (dB) threshold from the normalized composite audiograms, with 
the exception for lower limits for low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al., (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in Table 3.

[[Page 85595]]



            Table 3--Marine Mammal Hearing Groups (NMFS 2018)
------------------------------------------------------------------------
               Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen         7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans (dolphins,      150 Hz to 160 kHz.
 toothed whales, beaked whales, bottlenose
 whales).
High-frequency (HF) cetaceans (true          275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 cephalorhynchid, Lagenorhynchus cruciger &
 L. australis).
Phocid pinnipeds (PW) (underwater) (true     50 Hz to 86 kHz.
 seals).
Otariid pinnipeds (OW) (underwater) (sea     60 Hz to 39 kHz.
 lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al., 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al., (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth & Holt 
2013).
    For more detail concerning these groups and associated frequency 
ranges, please see NMFS (2018) for a review of available information. 
Five marine mammal species (2 cetacean and three pinniped (two otariid 
and one phocid) species) have the reasonable potential to co-occur with 
the planned activities. Please refer to Table 2. Of the cetacean 
species that may be present, one is classified as a low-frequency 
cetacean (i.e., all mysticete species) and one is classified as a high-
frequency cetacean (i.e., harbor porpoise).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The effects of underwater noise from pile removal activities have 
the potential to result in behavioral harassment of marine mammals in 
the vicinity of the survey area. The notice of proposed IHA (85 FR 
68042; October 27, 2020) included a discussion of the effects of 
anthropogenic noise on marine mammals and the potential effects of 
underwater noise from WSDOT's vibratory pile removal on marine mammals 
and their habitat. That information and analysis is incorporated by 
reference into this final IHA determination and is not repeated here; 
please refer to the notice of proposed IHA (85 FR 68042; October 27, 
2020).

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized through this IHA, which will inform both NMFS' consideration 
of ``small numbers'' and the negligible impact determination.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA defines ``harassment'' as any act of 
pursuit, torment, or annoyance, which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild (Level A harassment); 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering (Level B harassment).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to sound from vibratory pile removal. Based on 
the nature of the activity, Level A harassment is neither anticipated 
nor authorized.
    As described previously, no mortality is anticipated or authorized 
for this activity. Below we describe how the take is estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
that will be ensonified above these levels in a day; (3) the density or 
occurrence of marine mammals within these ensonified areas; and, (4) 
and the number of days of activities. We note that while these basic 
factors can contribute to a basic calculation to provide an initial 
prediction of takes, additional information that can qualitatively 
inform take estimates is also sometimes available (e.g., previous 
monitoring results or average group size). Below, we describe the 
factors considered here in more detail and present the authorized take 
estimate.

Acoustic Thresholds

    NMFS recommends the use of acoustic thresholds that identify the 
received level of underwater sound above which exposed marine mammals 
would be reasonably expected to be behaviorally harassed (equated to 
Level B harassment) or to incur permanent threshold shift (PTS) of some 
degree (equated to Level A harassment).
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Southall et al., 2007, 
Ellison et al., 2012). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 micro Pascal ([mu]Pa) (root mean square 
(rms)) for continuous (e.g., vibratory pile-driving, drilling) and 
above 160 dB re 1 [mu]Pa (rms) for non-explosive impulsive (e.g., 
seismic airguns) or intermittent (e.g., scientific sonar) sources.
    WSDOT's activity includes the use of a continuous source (vibratory 
pile removal); therefore, the 120 dB re 1 [mu]Pa (rms) is applicable.
    Level A harassment for non-explosive sources--NMFS' Technical 
Guidance for Assessing the Effects of Anthropogenic Sound on Marine 
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual 
criteria to assess auditory injury (Level A harassment) to five 
different marine mammal groups (based on hearing sensitivity) as a 
result of exposure to noise from two different types of sources 
(impulsive or non-impulsive). WSDOT's activity includes the use of non-
impulsive (vibratory pile removal) sources.

[[Page 85596]]

    These thresholds are provided in the table below. The references, 
analysis, and methodology used in the development of the thresholds are 
described in NMFS 2018 Technical Guidance, which may be accessed at 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/
marine-mammal-acoustic-technical-guidance.

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

Ensonified Area

    Here, we describe operational and environmental parameters of the 
activity that will feed into identifying the area ensonified above the 
acoustic thresholds, which include source levels and transmission loss 
coefficient.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the project. Marine 
mammals are expected to be affected via sound generated by vibratory 
pile removal.
    Vibratory hammers produce constant sound when operating, and 
produce vibrations between 1,200 and 2,400 vibrations per minute that 
liquefy the sediment surrounding the pile, allowing it to be removed 
with an upward lift from the crane. The actual duration to remove each 
pile depends on the type and size of the pile, sediment 
characteristics, etc.
    In order to calculate distances to the Level A harassment and Level 
B harassment sound thresholds for piles of various sizes being used in 
this project, NMFS used acoustic monitoring data from other locations 
to develop source levels for the various pile types, sizes and methods. 
NMFS derived the project sound source levels from reviewing vibratory 
pile driving source levels in the Naval Base Kitsap at Bangor Trident 
Support Facilities EHW-2 Project Acoustic Monitoring Report (2013), 
CALTRANS Compendium (2015), and Naval Base Kitsap at Bangor Test Pile 
Program Acoustic Monitoring Report (I&R 2012) (See Table 5). Since 
adequate data was not available for 18-inch steel piles the vibratory 
pile driving of 24-inch steel pile, with more than 100 data points, 
with a median source level of 162 dB rms was used as a proxy. NMFS 
believes the available data for 48-inch steel piles may be 
underestimated in comparison to more robust data for 30 and 36-inch 
steel piles. Hence, the 75th percentile of the sample was used rather 
than the median noise level (165 dB rms) to ensure the selected source 
level is adequately representative of actual source levels. All proxies 
used are derived from vibratory pile installation as removal values are 
unavailable. Use of source levels from installation events as a proxy 
for removal events is expected to be somewhat conservative.

                  Table 5--Project Sound Source Levels
------------------------------------------------------------------------
                  Pile driving activity                    Source level
------------------------------------------------------------------------
          Hammer type                   Pile type             dB rms
------------------------------------------------------------------------
Vibratory Removal..............  18-inch steel pile.....             162
                                 24-inch steel pile.....             162
                                 48-inch steel pile.....             171
------------------------------------------------------------------------
Note: Estimated sound source level at 10 meters without attenuation.

Level B Harassment Zones

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

TL is:

TL = B * Log10 (R1/R2) where:

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

    The recommended TL coefficient for most nearshore environments is 
the practical spreading value of 15. This value results in an expected 
propagation environment that would lie between spherical and 
cylindrical spreading loss conditions, which is the most

[[Page 85597]]

appropriate assumption for WSDOT's activity.
    Using the practical spreading model, WSDOT determined underwater 
noise would fall below the behavioral effects threshold of 120 dB rms 
for marine mammals. NMFS independently estimated the Level B harassment 
areas using geographic information system (GIS) tools to eliminate land 
masses and other obstacles that block sound propagation at high tide. 
Such topographic barriers limit the maximum distance from being 
attained in all directions as shown by the actual ensonified areas 
calculated (Figure 2). The estimated Level B harassment distances and 
associated areas (as limited by topographic barriers), summarized in 
Table 6, determines the maximum potential Level B harassment zones for 
the project.

              Table 6--Level B Isopleths for Each Pile Type
------------------------------------------------------------------------
                                              Level B       Area  (km2)
           Vibratory pile type             isopleth  (m)
------------------------------------------------------------------------
18-inch steel pile......................           6,310             9.1
24-inch steel pile......................           6,310             9.1
48-inch steel pile......................          25,120           15.35
------------------------------------------------------------------------

                                                          [GRAPHIC] [TIFF OMITTED] TN29DE20.414
                                                          
Level A Harassment Zones

    When the NMFS Technical Guidance (2016) was published, in 
recognition of the fact that ensonified area/volume could be more 
technically challenging to predict because of the duration component in 
the new thresholds, we developed a User Spreadsheet that includes tools 
to help predict a simple isopleth that can be used in conjunction with 
marine mammal density or occurrence to help predict takes. We note that 
because of some of the assumptions included in the methods used for 
these tools, we anticipate that isopleths produced are typically going 
to be overestimates of some degree, which may result in some degree of 
overestimate of Level A harassment take. However, these tools offer the 
best way to predict appropriate isopleths when more sophisticated 3D 
modeling methods are not available, and NMFS continues to develop ways 
to quantitatively refine these tools, and will qualitatively address 
the output where appropriate. For stationary sources such as vibratory 
pile removal, NMFS User Spreadsheet predicts the distance at which, if 
a marine mammal remained at that distance the whole duration of the 
activity, it would incur PTS. Inputs used in the User Spreadsheet, and 
the resulting isopleths are reported below (Tables 7 and 8).

        Table 7--NMFS Technical Guidance User Spreadsheet Input To Calculate Level A Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                Method                                             Vibratory removal
----------------------------------------------------------------------------------------------------------------
Pile Type............................  48-inch steel pile.....  24-inch steel pile.....  18-inch steel pile.
Source Level (RMS SPL)...............  171 dBRMS..............  162 dBRMS..............  162 dBRMS.

[[Page 85598]]

 
Weighting Factor Adjustment (kHz)....  2.5....................  2.5....................  2.5.
Number of Piles per day..............  1......................  4......................  1.
Duration to drive a single pile (min)  45.....................  45.....................  45.
Distance of source level measurement   10.....................  10.....................  10.
 (m).
----------------------------------------------------------------------------------------------------------------

    The above input scenarios lead to PTS isopleth distances (Level A 
thresholds) of 0.3 to 39 meters (m) (128 feet (ft)), depending on the 
marine mammal group and scenario (Table 8).

     Table 8--Calculated Distances (m) to Level A Harassment Isopleths During Pile Removal per Hearing Group
----------------------------------------------------------------------------------------------------------------
                                                           Level A harassment zone (m)
                                --------------------------------------------------------------------------------
           Pile type              Low-frequency   Mid-frequency   High-frequency      Phocid          Otariid
                                    cetaceans       cetaceans       cetaceans        pinnipeds       pinnipeds
----------------------------------------------------------------------------------------------------------------
48-inch steel pile.............              26               2               39              16               1
24-inch steel pile.............              17               2               25              10               1
18-inch steel pile.............               7               1               10               4               0
----------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
Gray Whale
    Photo identification, monitoring data, and stranding data 
corroborates the presence of gray whales in Grays Harbor and the 
adjacent coastal waters, as described in the Description of Marine 
Mammals in the Area of Specified Activities section above. Yet, these 
sources do not provide density data specific to Grays Harbor. 
Calambokidis et al., (1997, 2015, 2019) is a collection of more than 20 
years of photo identification data, but it does not provide enough 
information suitable for derivation of a density value. The U.S. 101/
Chehalis River Bridge Scour Repair Project Marine Mammal Monitoring 
Report (WSDOT 2019) showed no observations of this species. 
Approximately 29 gray whale strandings were documented in Grays Harbor 
and adjacent coastal area from February 2010 to August 2019 (NMMSD 
2020); the closest to the project was found in mudflats near the tip of 
Bowerman Airfield, ~9.82 kilometers (km) (6.10 miles (mi)) from the 
project site, in 2018. The NMSDD (2019) estimated the offshore density 
of gray whales from July to December to be 0.020167 gray whales/km\2\. 
Using it in estimated take calculations yielded a low value for gray 
whales (<2) in Grays Harbor that, in NMFS' estimation, did not properly 
reflect the variability of group sizes and the real likelihood of 
encounter.
    Their group size is known to fluctuate by activity, which in turn 
correlates to season. During migration, they are solo or in small 
groups. On the feeding grounds, whales are customarily seen solo or in 
small, widely dispersed groups. Larger, loosely formed aggregations do 
occur on feeding and breeding grounds, but are in constant flux (Wursig 
et al., 2018). Gray whale occurrence off the Washington coast is 
expected to consist primarily of PCFG whales from July-November, 
feeding from five Biological Important Areas (BIAs) before migrating to 
the southern breeding grounds for winter (NMSDD 2019).
Harbor Porpoise
    Without the species count breakdown of aerial surveys in Grays 
Harbor (Adam et al., 2014) or information necessary to derive density 
values from photo identification data (Calambokidis et al., 2015), the 
NMSDD (2019) annual value for harbor porpoises offshore of Grays 
Harbor, 0.467/km\2\ is the most appropriate data source to calculate 
take.
California Sea Lion
    The closest of the 116 California sea lion strandings reported in 
Grays Harbor and adjacent coastal area from August 2010 to February 
2020, was located in Aberdeen, approximately 1.86 km (1.6 mi) from the 
project site (NMMSD 2020). Without a correction factor to incorporate 
those sea lions in the water during aerial haulout surveys of Grays 
Harbor (Jeffries et al., 2015), the density of only individuals hauled 
out from November to March is 0.12 seal lions/km\2\. Since the 
appropriate data is not available to calculate the accurate density of 
all individuals using Grays Harbor, the offshore density of 0.6493 sea 
lions/km\2\ during December through February (NMSDD 2020) was used.
Steller Sea Lion
    Because density data is not available for Grays Harbor, the NMSDD 
(2020) summer offshore density of 0.1993 Steller sea lions/km\2\ is 
used.
Harbor Seal
    Because aerial surveys of harbor seals on land only produce a 
minimum assessment of the population a correction factor to account for 
the missing animals is necessary to estimate total abundance. The total 
counts from 2014 Grays Harbor aerial surveys (pers comm., WDFW 2020) 
were multiplied by the regional correction factor of 1.43 (Huber et 
al., 2001) to yield the estimated harbor seal abundance. The average 
survey count (7,495 seals/survey) was used to calculate density by 
dividing by the area of Grays Harbor:

((10,483 total count * 1.43)/(2 surveys))/(243 km\2\) = 30.85 km\2\

    The density data specific to Grays Harbor (pers comm., WDFW 2020) 
is preferred over the NMSDD's (2020) estimated density for waters 
offshore Washington, 0.3424 harbor seals/km\2\.

Take Calculation and Estimation

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    Level A harassment take is not likely because of the small injury 
zones; the largest Level A harassment distance is 40 m (131 ft) from 
the source for high-frequency cetaceans (harbor porpoise).

[[Page 85599]]

NMFS considers that WSDOT can effectively monitor such small zones to 
implement shutdown measures and avoid Level A harassment takes, and 
that harbor porpoise in particular are more likely to avoid the 
construction activity than remain within the zone for the full duration 
necessary to accumulate sufficient energy to incur injury. Therefore, 
no Level A harassment take of marine mammals is authorized.
    Take numbers were calculated using the information aggregated in 
the NMSDD (U.S. Navy, 2020) for the harbor porpoise, California sea 
lion, and Steller sea lion. Where a low to high range of densities is 
given for a species, the high-end density value was used in the 
applicable season (i.e., summer/fall/winter). In these cases, take 
numbers were calculated as:

Total Take = marine mammal density x ensonified area x pile removal 
days

    Specific adjustments for calculating take numbers for gray whales 
and harbor seals are provided below.
    <bullet> Evaluated use of data value (offshore) and result is what 
we consider underestimate of value. Because recent data for gray whales 
in Grays Harbor does not provide enough information to derive a density 
value, and because the Level B harassment zone stretches across the 
length of Grays Harbor, and the flexible group size correlated to 
season, we authorize Level B harassment take of 1 gray whale per day of 
construction activity 1 x 7 days = 7 gray whales.
    <bullet> The density of harbor seals in Grays Harbor based on 2014 
aerial surveys described above (pers comm., WDFW 2020), replaces the 
NMSDD density value in the Total Take equation above.

                                           Table 9--Input for Level B Harassment Take Calculations per Species
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Level B      Level B     Number of                 Number of
              Species                Density  (#/ area  48-in  area  18/24- days  48-in   Number of   days  18-in    Level B      Level B      Level B
                                        km\2\)       (km\2\)   in  (km\2\)       *       days  24-in       **      take  48-in  take  24-in  take  18-in
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray Whale.........................      * 0.020        15.35          9.1            1            5            1          0.3          0.9          0.2
Harbor Porpoise....................        0.467        15.35          9.1            1            5            1            7           21            4
CA Sea Lion........................        0.557        15.35          9.1            1            5            1           10           30            6
Steller Sea Lion...................        0.139        15.35          9.1            1            5            1            3            9            2
Harbor Seal........................        30.85        15.35          9.1            1            5            1          473         1403          281
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Density was not used in the calculation of estimated take for gray whales.


 Table 10--Authorized Level B Harassment Take, by Species and Stock and
                        Percent of Take by Stock
------------------------------------------------------------------------
                                            Authorized      Percent of
                 Species                   take Level B        stock
------------------------------------------------------------------------
Gray Whale..............................               7            <0.1
Harbor Porpoise.........................              31             0.1
CA Sea Lion.............................              46            <0.1
Steller Sea Lion........................              14            <0.1
Harbor Seal.............................            2157             8.7
------------------------------------------------------------------------

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting the 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) The practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The following mitigation measures are required through the IHA:

Temporal and Seasonal Restrictions

    Timing restrictions would be used to avoid in-water work when ESA-
listed salmonids are most likely to be present. Furthermore, work is 
planned to occur only during daylight hours, when visual monitoring of 
marine mammals can be effectively conducted (30 minutes after sunrise 
to 30 minutes before sunset).

Establishment of Shutdown Zone

    WSDOT will establish a shutdown zone for all pile driving and 
removal activities. The purpose of a shutdown zone is generally to 
define an area within which shutdown of activity would occur upon 
sighting of a marine mammal (or in anticipation of an animal entering 
the defined area). Shutdown zones will vary based on the activity type 
and marine mammal hearing group (Table 4). The largest shutdown zones 
are generally for high frequency cetaceans, as shown in Table 11.

[[Page 85600]]



                             Table 11--Shutdown Zones During Pile Driving Activities
----------------------------------------------------------------------------------------------------------------
                                                  Low-frequency   High-frequency      Phocid          Otariid
                   Pile type                        cetaceans       cetaceans        pinnipeds       pinnipeds
----------------------------------------------------------------------------------------------------------------
48-inch steel pile.............................              30               40              20              10
24-inch steel pile.............................              20               30              15              10
18-inch steel pile.............................              10               10              10              10
----------------------------------------------------------------------------------------------------------------

    For in-water heavy machinery activities other than pile driving, if 
a marine mammal comes within 10 m, operations must cease and vessels 
must reduce speed to the minimum level required to maintain steerage 
and safe working conditions. WSDOT must also implement shutdown 
measures if the cumulative total number of individuals observed within 
the Level B harassment monitoring zones for any particular species 
reaches the number authorized under the IHA and if such marine mammals 
are sighted within the vicinity of the project area and are approaching 
the Level B Harassment zone during in-water construction activities. 
Should environmental conditions deteriorate such that marine mammals 
within the entire shutdown zone would not be visible (e.g., fog, heavy 
rain), pile driving and removal must be delayed until the PSO are 
confident marine mammals within the shutdown zone could be detected.

Monitoring for Level B Harassment

    WSDOT will monitor the Level B harassment and the Level A 
harassment zones. Monitoring zones provide utility for observing by 
establishing monitoring protocols for areas adjacent to the shutdown 
zones. Monitoring zones enable observers to be aware of and communicate 
the presence of marine mammals in the project area outside the shutdown 
zone and thus prepare for a potential halt of activity should the 
animal enter the shutdown zone. Placement of PSO will allow PSOs to 
observe marine mammals within the Level B harassment zones.

Pre-Activity Monitoring

    Prior to the start of daily in-water construction activity, or 
whenever a break in pile removal of 30 minutes or longer occurs, PSOs 
will observe the shutdown and monitoring zones for a period of 30 
minutes. The shutdown zone will be considered cleared when a marine 
mammal has not been observed within the zone for that 30-minute period. 
If a marine mammal is observed within the shutdown zone, operations 
cannot proceed until the animal has left the zone or has not been 
observed for 15 minutes. When a marine mammal for which Level B 
harassment take is authorized is present in the Level B harassment 
zone, activities may begin and Level B harassment take will be 
recorded. If work ceases for more than 30 minutes, the pre-activity 
monitoring of the shutdown zones will commence.

Non-Authorized Take Prohibited

    If a species enters or approaches the Level B harassment zone and 
that species is not authorized for take, pile driving and removal 
activities must shut down immediately. Activities must not resume until 
the animal has been confirmed to have left the area or an observation 
time period of 15 minutes has elapsed.
    Based on our evaluation of the applicant's mitigation measures, 
NMFS has determined that the required mitigation measures provide the 
means effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
action area. Effective reporting is critical both to compliance as well 
as ensuring that the most value is obtained from the required 
monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
    <bullet> Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (e.g., presence, abundance, distribution, 
density);
    <bullet> Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
affected species (e.g., life history, dive patterns); (3) co-occurrence 
of marine mammal species with the action; or (4) biological or 
behavioral context of exposure (e.g., age, calving or feeding areas);
    <bullet> Individual marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
    <bullet> How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
    <bullet> Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
    <bullet> Mitigation and monitoring effectiveness.

Visual Monitoring

    Marine mammal monitoring must be conducted in accordance with the 
Monitoring section of the application and Section 5 of the IHA. Marine 
mammal monitoring during pile removal must be conducted by NMFS-
approved PSOs in a manner consistent with the following:
    <bullet> Independent PSOs (i.e., not construction personnel) who 
have no other assigned tasks during monitoring periods must be used;
    <bullet> 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;
    <bullet> Other PSOs may substitute education (degree in biological 
science or related field) or training for experience; and
    <bullet> WSDOT must submit PSO Curriculum Vitae for approval by 
NMFS prior to the onset of pile driving.
    PSOs must have the following additional qualifications:
    <bullet> Ability to conduct field observations and collect data 
according to assigned protocols;

[[Page 85601]]

    <bullet> Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
    <bullet> Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    <bullet> Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates, times, and reason for implementation 
of mitigation (or why mitigation was not implemented when required); 
and marine mammal behavior; and
    <bullet> 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.
    Two PSOs will be employed. PSO locations will provide an 
unobstructed view of all water within the shutdown zone, and as much of 
the Level B harassment zones as possible. PSO locations are as follows:
    (1) At the pile driving site or best vantage point practicable to 
monitor the shutdown zones; and
    (2) On shore, south of Mid-harbor Flats or best vantage point to 
monitor the harbor seal haul-out site during construction activities.
    Monitoring will be conducted 30 minutes before, during, and 30 
minutes after pile driving/removal activities. In addition, observers 
shall record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from piles being driven or removed. Pile driving 
activities include the time to install or remove a single pile or 
series of piles, as long as the time elapsed between uses of the pile 
driving or drilling equipment is no more than 30 minutes.

Reporting

    A draft marine mammal monitoring report will be submitted to NMFS 
within 90 days after the completion of pile driving and removal 
activities, or 60 days prior to a requested date of issuance of any 
future IHAs for projects at the same location, whichever comes first. 
The report will include an overall description of work completed, a 
narrative regarding marine mammal sightings, and associated PSO data 
sheets. Specifically, the report must include:
    <bullet> Dates and times (begin and end) of all marine mammal 
monitoring;
    <bullet> Construction activities occurring during each daily 
observation period, including how many and what type of piles were 
removed;
    <bullet> 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 (if less 
than the harassment zone distance);
    <bullet> The number of marine mammals observed, by species, 
relative to the pile location and if pile driving or removal was 
occurring at time of sighting;
    <bullet> Age and sex class, if possible, of all marine mammals 
observed;
    <bullet> PSO locations during marine mammal monitoring;
    <bullet> Distances and bearings of each marine mammal observed to 
the pile being driven or removed for each sighting (if pile driving or 
removal was occurring at time of sighting);
    <bullet> Description of any marine mammal behavior patterns during 
observation, including direction of travel and estimated time spent 
within the Level A and Level B harassment zones while the source was 
active;
    <bullet> Number of marine mammals detected within the harassment 
zones, by species;
    <bullet> Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting behavior of the animal, if 
any;
    <bullet> Description of attempts to distinguish between the number 
of individual animals taken and the number of incidences of take, such 
as ability to track groups or individuals; and
    <bullet> Submit all PSO datasheets and/or raw sighting data (in a 
separate file from the Final Report referenced immediately above).
    If no comments are received from NMFS within 30 days, the draft 
final report will constitute the final report. If comments are 
received, a final report addressing NMFS comments must be submitted 
within 30 days after receipt of comments.

Reporting Injured or Dead Marine Mammals

    In the event that personnel involved in the construction activities 
discover an injured or dead marine mammal, WSDOT shall report the 
incident to the Office of Protected Resources (OPR), NMFS and to the 
regional stranding coordinator as soon as feasible. If the death or 
injury was clearly caused by the specified activity, WSDOT must 
immediately cease the specified activities until NMFS is able to review 
the circumstances of the incident and determine what, if any, 
additional measures are appropriate to ensure compliance with the terms 
of the IHA. The IHA-holder must not resume their activities until 
notified by NMFS. The report must include the following information:
    <bullet> Time, date, and location (latitude/longitude) of the first 
discovery (and updated location information if known and applicable);
    <bullet> Species identification (if known) or description of the 
animal(s) involved;
    <bullet> Condition of the animal(s) (including carcass condition if 
the animal is dead);
    <bullet> Observed behaviors of the animal(s), if alive;
    <bullet> If available, photographs or video footage of the 
animal(s); and
    <bullet> General circumstances under which the animal was 
discovered.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any responses (e.g., intensity, duration), the context 
of any responses (e.g., critical reproductive time or location, 
migration), as well as effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing

[[Page 85602]]

sources of human-caused mortality, or ambient noise levels).
    To avoid redundancy this introductory discussion of our analyses 
applies to all of the species listed in Table 10, given that many of 
the anticipated effects of this project on different marine mammal 
stocks are expected to be relatively similar in nature. Pile removal 
activities have the potential to disturb or displace marine mammals. 
Specifically, the project activities may result in take, in the form of 
Level B harassment from underwater sounds generated from pile removal. 
Potential takes could occur if individuals are present in the Level B 
harassment zone when these activities are underway.
    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 the species or stock 
through effects on annual rates of recruitment or survival:
    <bullet> No mortality is anticipated or authorized;
    <bullet> No takes by Level A harassment are anticipated or 
authorized. Takes by Level B harassment constitute less than 8 percent 
of the best available abundance estimates for all stocks;
    <bullet> Take would occur over a short timeframe (6 days of active 
pile removal) during the IHA effective period) and not occur in places 
and/or times where take would be more likely to accrue to impacts on 
reproduction or survival, such as within ESA-designated or proposed 
critical habitat;
    <bullet> Stock is not known to be declining or suffering from known 
contributors to decline (e.g., unusual mortality event (UME), oil spill 
effects); and
    <bullet> Monitoring reports from similar work from the Chehalis 
River Bridge Scour Repair Project have documented little to no effect 
on individuals of the same species impacted by the specified 
activities.
    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 monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the planned 
activity will have a negligible impact on all affected marine mammal 
species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    The amount of take NMFS authorized of all species or stocks is 
below one third of the estimated stock abundance (in fact, take of 
individuals is less than 8 percent of the abundance for all affected 
stocks). These are all likely conservative estimates because they 
assume all takes are of different individual animals which is likely 
not the case. Some individuals may return multiple times in a day, but 
PSOs would count them as separate takes if they cannot be individually 
identified.
    Based on the analysis contained herein of the activity (including 
the mitigation and monitoring measures) and the anticipated take of 
marine mammals, NMFS finds that small numbers of marine mammals will be 
taken relative to the population size of the affected species or 
stocks.

Unmitigable Adverse Impact Analysis and Determination

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

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our action (i.e., the issuance of an incidental 
harassment authorization) 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 with 
no anticipated serious injury or mortality) of the Companion Manual for 
NOAA Administrative Order 216-6A, which do not individually or 
cumulatively have the potential for significant impacts on the quality 
of the human environment and for which we have not identified any 
extraordinary circumstances that would preclude this categorical 
exclusion. Accordingly, NMFS has determined that the issuance of the 
IHA qualifies to be categorically excluded from further NEPA review.

Endangered Species Act

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

Authorization

    NMFS has issued an IHA to WSDOT for the potential harassment of 
small numbers of five marine mammal species incidental to the for 
conducting State Route 520 Pontoon Pile Removal Project, Aberdeen, 
Grays Harbor County, Washington over approximately seven days, provided 
the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: December 22, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-28752 Filed 12-28-20; 8:45 am]
BILLING CODE 3510-22-P