[Federal Register Volume 76, Number 161 (Friday, August 19, 2011)]
[Notices]
[Pages 51947-51953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21248]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA289


Small Takes of Marine Mammals Incidental to Specified Activities; 
Pile Driving in the Columbia River, WA

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments.

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SUMMARY: NMFS has received a complete and adequate application from the 
Port of Vancouver, USA (Port) for an Incidental Harassment 
Authorization (IHA) to take marine mammals, by harassment, incidental 
to pile driving during construction of the Terminal 5 Bulk Potash 
Handling Facility. Pursuant to the Marine Mammal Protection Act (MMPA), 
NMFS is proposing to issue an IHA to incidentally harass, by Level B 
harassment only, three species of marine mammals during the specified 
activity within a specific geographic area and is requesting comments 
on its proposal.

DATES: Comments and information must be received no later than 
September 19, 2011.

ADDRESSES: Comments on the application and this proposal should be 
addressed to Michael Payne, Chief, Permits, Conservation and Education 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. The 
mailbox address for providing email comments is <a href="/cdn-cgi/l/email-protection#28617c780665494f4441474b4b496846474949064f475e"><span class="__cf_email__" data-cfemail="4d04191d63002c2a2124222e2e2c0d23222c2c632a223b">[email protected]</span></a>. 
NMFS is not responsible for e-mail comments sent to addresses other 
than the one provided here. Comments sent via e-mail, including all 
attachments, must not exceed a 10-megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the address specified 
above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this 
notice may also be viewed, by appointment, during regular business 
hours, at the aforementioned address.

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce 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 specific 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 authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) further established a 45-day time limit for NMFS' 
review of an application, followed by a 30-day public notice and 
comment period on any proposed authorizations for the incidental 
harassment of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny the authorization.

[[Page 51948]]

    Except with respect to certain activities not pertinent here, 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].

Summary of Request

    On February 22, 2011, NMFS received an application from the Port of 
Vancouver, USA (Port), requesting an IHA for the take, by Level B 
harassment, of small numbers of Pacific harbor seals (Phoca vitulina 
richardii), California sea lions (Zalophus californianus), and Steller 
sea lions (Eumatopius jubatus) incidental to pile driving activities 
conducted during the construction of the Terminal 5 Bulk Potash 
Handling Facility. Upon receipt of additional information and a revised 
application (submitted May 6, 2011), NMFS determined the application 
complete and adequate on June 7, 2011.
    The applicant proposes to lease part of Terminal 5, located at the 
Port of Vancouver, for the purposes of constructing and operating a 
bulk potash handling facility on the Columbia River. The facility would 
allow shipping of potash (salts containing potassium in water-soluble 
form) to global markets. The proposed project would require pile 
installation of up to 203 steel piles and removal of 177 wood piles. 
Because elevated sound levels from pile driving have the potential to 
result in marine mammal harassment, NMFS is proposing to issue an IHA 
for take incidental to the specified activity.

Description of the Specified Activity

    The proposed project would involve construction of a potash 
handling facility along the Columbia River in Vancouver, Washington. 
The facility would accept potash shipped by rail from potash mines in 
Saskatchewan, Canada. On-site infrastructure is proposed to enable the 
unloading of rail cars into on-site storage, and the conveyance of 
potash to vessels at a new berth to be constructed on the Columbia 
River adjacent to the facility. The on-site infrastructure would 
include dedicated rail facilities and the construction and installation 
of materials handling equipment, storage structures, utilities, and 
internal access roads on the site, a marine berth with ship loaders, 
and other related ancillary infrastructure.
    To support the new facility, a maximum of 203 steel piles would be 
installed at the proposed project site (specifically, Terminal 5) using 
vibratory and impact pile driving. These piles would be necessary for 
construction of a ship loading system, marine berthing facilities, and 
a new stormwater outfall system. A breakdown of pile size and 
associated activity are shown in Table 1.

                                Table 1--Summary of Pile Installation Activities
----------------------------------------------------------------------------------------------------------------
                Activity                    Number of piles (maximum)                    Location
----------------------------------------------------------------------------------------------------------------
Installation of permanent piles for      100, 36- to 40-in (914- to
 ship loader and berth.                   1,016-mm) steel pipe piles.
Installation and removal of temporary    95, 18- to 24-in (457- to 610-   River mile 103.3.
 piles during construction of ship        mm) steel pipe piles.
 loader and berth.
Installation of permanent piles for      8, 16-in steel H-piles.........
 stormwater outfall.
Removal of old piles...................  177, 16-in wood piles..........  River mile 105.
----------------------------------------------------------------------------------------------------------------

    Of the 100, 36- to 40-in (914- to 1,016-mm) steel pipe piles, 36 
would be used for quadrant beams and pivot supports, 42 would be used 
for the mooring and berthing dolphins and platform, 10 would be used 
for access trestles, and the remaining 12 would be intended as a 
contingency should additional piles be required. Approximately two 
piles would be installed per day over a four-month period. Although the 
exact duration of pile driving would vary depending on the installation 
procedures and geotechnical conditions, the applicant estimates that 
each permanent pile would require between two and three hours of 
vibratory installation and between one and two hours of impact driving 
to install. To the extent possible, all piles would be installed with 
an APE Model 200 (or similar) vibratory hammer; however, it may be 
necessary to seat a pile using an impact hammer. The temporary piles 
(18- to 24-in diameter) would be driven solely with a vibratory hammer. 
Should an impact hammer be necessary for finishing the installation of 
permanent piles, the Port would use a DELMAG D46-32 with 60-80 maximum 
blows per foot, a DELMAG D80 with 20-30 maximum blows per foot, or a 
similar model. Sound attenuation devices, such as a bubble curtain, 
would be used during any impact hammering.
    In addition to pile installation, a total of 272 piles would also 
be removed using vibratory extraction or a crane. These consist of the 
95 temporary piles and 177 old wood piles upstream of Terminal 5 (Table 
1). The 177 wood piles are located at Terminal 2, about two miles 
upstream from Terminal 5, and do not have much structural capacity. A 
pneumatic underwater chainsaw may be used if a pile breaks in the 
process, but associated noise is expected to be negligible. Above-water 
work would also be necessary to complete construction of each project 
component. There could be barges in the water to support construction 
activities; however, these would be concentrated in the direct vicinity 
of Terminal 5. Because pile repair, pile removal, and use of barges do 
not release loud sounds into the environment, marine mammal harassment 
from these activities is not anticipated.

Region of Activity

    The proposed activity would occur within the Lower Columbia River 
sub-basin. The Columbia River and its tributaries are the dominant 
aquatic system in the Pacific Northwest, originating in Canada's Rocky 
Mountains and flowing approximately 1,200 mi (1,931 km) to the Pacific 
Ocean. Saltwater intrusion from the Pacific Ocean extends approximately 
23 mi (37 km) upstream from the river mouth at Astoria, Oregon and 
coastal tides influence the flow rate and river level up to the 
Bonneville Dam at river mile 146. The proposed construction would take 
place at 5701 NW Lower River Road in Vancouver, Washington, about 3 mi 
(4.8 km) northwest of downtown Vancouver, Washington. The area is 
composed of submerged, tidal, nearshore, and upland lands along a 
2,300-ft (701-m) long section on the north bank of the Columbia River. 
The proposed project site is centered around river mile 103.3, a reach 
of the Columbia River that is about 3,000 ft (914 m) wide on average, 
but would also include additional pile removal at river mile 105. A 
heavy industrial site, this

[[Page 51949]]

area has been used since the 1940s for aluminum smelting as well as for 
the fabrication and outdoor storage of aluminum ingots, but is 
currently used for storage of windmill components.

Dates of Activity

    The Washington Department of Fish and Wildlife's recommended in-
water work window for this area is November 1 through February 28. 
Timing restrictions such as this are used to avoid in-water work when 
listed species are most likely to be present. Proposed pile 
installation and removal activities are scheduled to occur between 
November 1, 2012 and February 28, 2013, in agreement with the state's 
recommendation.

Sound Propagation

    For background, sound is a mechanical disturbance consisting of 
minute vibrations that travel through a medium, such as air or water, 
and is generally characterized by several variables. Frequency 
describes the sound's pitch and is measured in hertz (Hz) or kilohertz 
(kHz), while sound level describes the sound's loudness and is measured 
in decibels (dB). Sound level increases or decreases exponentially with 
each dB of change. For example, 10 dB yields a sound level 10 times 
more intense than 1 dB, while a 20 dB level equates to 100 times more 
intense, and a 30 dB level is 1,000 times more intense. Sound levels 
are compared to a reference sound pressure (micro-Pascal) to identify 
the medium. For air and water, these reference pressures are ``re: 20 
[mu]Pa'' and ``re: 1 [mu]Pa,'' respectively. Root mean square (RMS) is 
the quadratic mean sound pressure over the duration of an impulse. RMS 
is calculated by squaring all of the sound amplitudes, averaging the 
squares, and then taking the square root of the average (Urick, 1975). 
RMS accounts for both positive and negative values; squaring the 
pressures makes all values positive so that they may be accounted for 
in the summation of pressure levels (Hastings and Popper, 2005). This 
measurement is often used in the context of discussing behavioral 
effects, in part because behavioral effects, which often result from 
auditory cues, may be better expressed through averaged units rather 
than by peak pressures.
    Data from a Washington Department of Transportation monitoring 
project at Port Townsend was used for the vibratory pile driving noise 
analysis (WSDOT, 2010b). There is a lack of information related to the 
size of the impact hammer and the resulting sound levels for 36- to 40-
in (914- to 1,016-mm) pile installations; therefore, noise levels 
recorded for projects in Alameda, California and Port Townsend, 
Washington, using similar equipment were used to estimate sound levels 
(CalTrans, 2009; WSDOT, 2010b). Maximum sound levels for impact and 
vibratory pile driving are shown in Table 2. No reference underwater 
sound levels are available for this area, so 120 dB RMS (the lowest 
potential impact threshold for marine mammals) was used as a surrogate 
(WSDOT, 2010a). The Port applied a practical spreading loss model to 
calculate sound propagation, which assumes that noise attenuates at a 
rate of 4.5 dB per doubling distance, and this attenuation rate 
increases to 10 dB per doubling distance beyond 0.6 mile (1 km) (WSDOT, 
2010a). Using this model, the largest noise impact zone is expected to 
result from vibratory pile driving of 36- to 40-in (914- to 1,016-mm) 
steel pipe piles. It may take up to 7 miles (11 km) for underwater 
sound to attenuate to below 120 dB. Because of the project area's 
location on a river bend and across from Hayden Island, sound 
transmission will be stopped by land masses much earlier in certain 
directions. In-air sound from pile driving also has the potential to 
affect marine mammals. However, in-air sound is not a concern here 
because there are no pinniped haul-out sites near the project area.
    Table 2. Maximum sound levels for impact and vibratory installation 
of unattenuated steel piles.

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
          Pile diameter                         Sound level (single strike) \1\                   Sound level
                                                                                                (vibratory) \2\
----------------------------------------------------------------------------------------------------------------
36- to 40-inch (914- to 1,016-    208 dBPEAK........  195 dBRMS.........  180 dBSEL.........  174 dBRMS.
 mm).
----------------------------------------------------------------------------------------------------------------
\1\ CalTrans, 2009.
\2\ WSDOT, 2010b.

Description of Marine Mammals in the Area of the Specified Activity

    Three marine mammal species have known distribution ranges that 
include the proposed project area: Pacific harbor seal, California sea 
lion, and Steller sea lion. These species may use the proposed project 
area as a seasonal transit corridor to and from the Bonneville Dam.

Pacific Harbor Seals

    Pacific harbor seals reside in coastal and estuarine waters off 
Baja, California, north to British Columbia, west through the Gulf of 
Alaska, and in the Bering Sea. Harbor seals in the Columbia River are 
part of the Oregon/Washington coastal stock. The most recent NMFS stock 
assessment report estimated this stock to be at least 22,380 
individuals and the population is likely at carrying capacity and no 
longer increasing (NMFS, 2007). The Oregon/Washington stock is not 
listed under the Endangered Species Act (ESA) nor considered depleted 
under the MMPA.
    Harbor seals are infrequently observed as far upstream in the 
Columbia River as Vancouver. The nearest known haul-out is 
approximately 60 miles (97 km) downstream of the proposed project area. 
Since 2002, the Army Corps of Engineers has documented less than four 
harbor seals at Bonneville Dam (approximately 40 miles [64 km] from the 
proposed project area) and harbor seals potentially within the proposed 
project area will likely be transiting to or from Bonneville Dam.

California Sea Lions

    California sea lions reside throughout the Eastern North Pacific 
Ocean in shallow coastal and estuarine waters, ranging from Central 
Mexico to British Columbia, Canada. Their primary breeding range 
extends from Central Mexico to the Channel Islands in Southern 
California. The U.S. stock abundance is estimated at 238,000 sea lions 
(NMFS, 2007). This stock is approaching carrying capacity and is 
reaching ``optimum sustainable population'' limits, as defined by the 
MMPA. California sea lions are not listed under the ESA nor considered 
depleted under the MMPA.
    Historically, California sea lions are the most frequently observed 
pinnipeds at Bonneville Dam, with the largest number (104) of 
individuals recorded in 2003. There are no California sea lion haul-
outs within the action area, so individuals present during construction 
would likely be passing through the area.

[[Page 51950]]

Steller Sea Lions

    Steller sea lions reside along the North Pacific Rim from northern 
Japan to California, with centers of abundance and distribution in the 
Gulf of Alaska and Aleutian Islands, respectively. Steller sea lions in 
the Columbia River are part of the eastern distinct population segment, 
which is listed as threatened under the ESA and designated as depleted 
under the MMPA. Since the 1970s, the average annual population growth 
rate has been three percent (NMFS, 2008a).
    Since 2002, observers have rarely seen Steller sea lions at 
Bonneville Dam, with less than ten sea lions recorded in most years. 
However, since 2008, the numbers of Steller sea lions documented at the 
dam have increased steadily to 75 individuals in 2010. The most recent 
stock assessment (NOAA, 2010) cited 516 individuals as the population 
count for the entire state of Washington. No Steller sea lion haul-outs 
or haul-out habitat are known within the proposed project area and 
there are no Steller sea lion rookeries in Washington. Any Steller sea 
lions present during construction would likely be passing through the 
area.
    All species of pinnipeds produce a wide range of social signals, 
most occurring at relatively low frequencies (Southall et al., 2007), 
suggesting that hearing is keenest at these frequencies. Pinnipeds 
communicate acoustically both on land and underwater, but have 
different hearing capabilities dependent upon the medium (air or 
water). Based on numerous studies, as summarized in Southall et al. 
(2007), pinnipeds are more sensitive to a broader range of sound 
frequencies underwater than in air. Underwater, pinnipeds can hear 
frequencies from 75 Hz to 75 kHz. In air, pinnipeds can hear 
frequencies from 75 Hz to 30 kHz (Southall et al., 2007).

Potential Effects on Marine Mammals

    The proposed action consists of both upland and marine components, 
but the only project component with the potential to take marine 
mammals is impact and vibratory pile driving. Elevated in-water sound 
levels from pile driving in the proposed project area may temporarily 
impact marine mammal behavior. Elevated in-air sound levels are not a 
concern because the nearest pinniped haul-out is approximately 60 miles 
(97 km) away. Marine mammals are continually exposed to many sources of 
sound. For example, lightning, rain, sub-sea earthquakes, and animals 
are natural sound sources throughout the marine environment. Marine 
mammals produce sounds in various contexts and use sound for various 
biological functions including, but not limited to, (1) social 
interactions; (2) foraging; (3) orientation; and (4) predator 
detection. Interference with producing or receiving these sounds may 
result in adverse impacts. Audible distance or received levels will 
depend on the sound source, ambient noise, and the sensitivity of the 
receptor (Richardson et al., 1995). Marine mammal reactions to sound 
may depend on sound frequency, ambient sound, what the animal is doing, 
and the animal's distance from the sound source (Southall et al., 
2007).

Hearing Impairment

    Marine mammals may experience temporary or permanent hearing 
impairment when exposed to loud sounds. Hearing impairment is 
classified by temporary threshold shift (TTS) and permanent threshold 
shift (PTS). There are no empirical data for when PTS first occurs in 
marine mammals; therefore, it must be estimated from when TTS first 
occurs and from the rate of TTS growth with increasing exposure levels. 
PTS is likely if the animal's hearing threshold is reduced by >= 40 dB 
of TTS. PTS is considered auditory injury (Southall et al., 2007) and 
occurs in a specific frequency range and amount. Irreparable damage to 
the inner or outer cochlear hair cells may cause PTS; however, other 
mechanisms are also involved, such as exceeding the elastic limits of 
certain tissues and membranes in the middle and inner ears and 
resultant changes in the chemical composition of the inner ear fluids 
(Southall et al., 2007). Due to proposed mitigation measures and source 
levels in the proposed project area, NMFS does not expect marine 
mammals to be exposed to PTS levels.

Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during 
exposure to a loud sound (Kryter, 1985). While experiencing TTS, the 
hearing threshold rises and a sound must be louder in order to be 
heard. TTS can last from minutes or hours to days, occurs in specific 
frequency ranges (i.e., an animal might only have a temporary loss of 
hearing sensitivity between the frequencies of 1 and 10 kHz), and can 
occur to varying degrees (e.g., an animal's hearing sensitivity might 
be reduced by 6 dB or by 30 dB). For sound exposures at or somewhat 
above the TTS-onset threshold, hearing sensitivity recovers rapidly 
after exposure to the sound ends. Few data on sound levels and 
durations necessary to elicit mild TTS have been obtained for marine 
mammals. Southall et al. (2007) considers a 6 dB TTS (i.e., baseline 
thresholds are elevated by 6 dB) sufficient to be recognized as an 
unequivocal deviation and thus a sufficient definition of TTS-onset. 
Because it is non-injurious, NMFS considers TTS as Level B harassment 
that is mediated by physiological effects on the auditory system; 
however, NMFS does not consider onset TTS to be the lowest level at 
which Level B harassment may occur. Southall et al. (2007) summarizes 
underwater pinniped data from Kastak et al. (2005), indicating that a 
tested harbor seal showed a TTS of around 6 dB when exposed to a non-
pulse noise at SPL 152 dB re: 1 [micro]Pa for 25 minutes. In contrast, 
a tested sea lion exhibited TTS-onset at 174 dB re: 1 [micro]Pa under 
the same conditions as the harbor seal. Data from a single study on 
underwater pulses found no signs of TTS-onset in sea lions at exposures 
up to 183 dB re: 1 [micro]Pa (peak-to-peak) (Finneran et al., 2003).
    There are limited data available on the effects of non-pulse noise 
(for example, vibratory pile driving) on pinnipeds while underwater; 
however, field and captive studies to date collectively suggest that 
pinnipeds do not react strongly to exposures between 90 and 140 dB re: 
1 microPa; no data exist from exposures at higher levels. Jacobs and 
Terhune (2002) observed wild harbor seal reactions to high-frequency 
acoustic harassment devices around nine sites. Seals came within 44 m 
of the active acoustic harassment devices and failed to demonstrate any 
behavioral response when received SPLs were estimated at 120-130 dB. In 
a captive study (Kastelein, 2006), scientists subjected a group of 
seals to non-pulse sounds between 8 and 16 kHz. Exposures between 80 
and 107 dB did not induce strong behavioral responses; however, a 
single observation from 100 to 110 dB indicated an avoidance response. 
The seals returned to baseline conditions shortly following exposure. 
Southall et al. (2007) notes contextual differences between these two 
studies; the captive animals were not reinforced with food for 
remaining in the noise fields, whereas free-ranging animals may have 
been more tolerant of exposures because of motivation to return to a 
safe location or approach enclosures holding prey items. While most of 
the pile driving at the proposed project site would be vibratory, an 
impact hammer (pulse noise) may be used to complete installation and to 
verify the piles' strength. Vibratory and impact pile driving may 
result in

[[Page 51951]]

anticipated hydroacoustic levels between 174 and 195 dB root mean 
square. Southall et al. (2007) reviewed relevant data from studies 
involving pinnipeds exposed to pulse noise and concluded that exposures 
to 150 to 180 dB generally have limited potential to induce avoidance 
behavior.
    Vibratory pile driving emits low-frequency broadband noise, which 
may be detectable by marine mammals within the proposed project area. 
The average value of 174 dB RMS from a Washington State Department of 
Transportation monitoring project of vibratory installation of a 36-
inch (917-mm) steel pipe pile at Port Townsend was used in the noise 
analysis for vibratory pile installation (WSDOT, 2010b). There is a 
lack of information related to the size of the impact hammer and the 
resulting sound levels for 36- to 40-inch (914 to 1,016-mm) pile 
installations. Therefore, noise levels recorded for a project in 
Alameda, California that installed 40-inch (1,016-mm) steel pipe piles 
using a DELMAG D80 impact hammer were used in the noise attenuation 
analysis (Caltrans, 2009).
    No impacts to pinniped reproduction are anticipated because there 
are no known haul-outs or rookeries within the proposed project area. 
NMFS expects any impacts to marine mammal behavior to be temporary, 
Level B harassment, for two reasons: first, animals may avoid the area 
around the hammer, thereby reducing their exposure to elevated sound 
levels; and second, pile driving does not occur continuously throughout 
the day; the vibratory hammer would operate for about 2-3 hours per 
pile and the impact hammer would operate for about 1-2 hours per pile. 
The applicant anticipates an average of two pilings to be driven per 
day, resulting in a total of 6-10 hours of pile driving within a 24-
hour period. Disturbance to marine mammal behavior may be in the form 
of temporary avoidance or alteration of transiting near the pile 
driving location. In addition, because a vibratory hammer would be used 
as much as possible, and the 190 dB isopleth for the impact hammer is 
70 ft (21 m), marine mammal injury or mortality is not likely. Impact 
pile driving would cease if a marine mammal is observed nearing or 
within the 190 dB isopleth. For these reasons, NMFS expects any changes 
to marine mammal behavior to be temporary and result in a negligible 
impact to affected species and stocks.

Anticipated Effects on Habitat

    A small area of shallow water habitat with silt/sand substrate 
would be shaded by the proposed structure, but this was minimized by 
placing the structure at a height which would allow for some light 
penetration and by lessening the width of the structure. A deep water 
area and shallow water area with riprap substrate would also be shaded, 
but these habitats provide few functions and are plentiful in the 
surrounding ecosystem. Pile installation and removal would result in 
some disturbance of the river substrate; however, this disturbance is 
expected to be local and temporary. Pile driving activities (i.e., 
temporary ensonification) may impact prey species and marine mammals by 
resulting in avoidance or abandonment of the area; however these 
impacts are also expected to be local and temporary. Overall, the 
proposed activity is not expected to cause significant or long-term 
impacts on marine mammal habitat.
    Essential Fish Habitat consultation is ongoing between the Port and 
NMFS for the proposed IHA, but will be concluded before NMFS makes a 
final determination on the issuance of an IHA.

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable adverse 
impact on such species or stock and its habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stock for 
taking for certain subsistence uses.
    The applicant has proposed the following mitigation measures to 
minimize adverse impacts to marine mammals:

Temporal Restrictions

    The Washington Department of Fish and Wildlife recommends an in-
water work window of November 1 through February 28, annually. This 
work window was designed to protect fish species, particularly salmonid 
eggs and fry. However, by limiting pile driving activities to this 
period of time, the peak sea lion run to and from the Bonneville Dam is 
also avoided.

Limited Use of an Impact Hammer

    To the extent possible, a vibratory hammer would be used to drive 
all piles. In the event that an impact hammer is necessary, a bubble 
curtain or similar noise attenuation method would be used as an 
attenuation device to reduce hydroacoustic sound levels to avoid the 
potential for injury.

Establishment of an Exclusion Zone

    During all in-water impact pile driving, the Port would establish a 
preliminary marine mammal exclusion zone of 70 ft (21 m) around each 
pile to avoid exposure to sounds at or above 190 dB. The exclusion zone 
would be monitored during all impact pile driving to ensure that no 
marine mammals enter the 70 ft (21 m) radius. The purpose of this area 
is to prevent Level A harassment (injury) of any marine mammal species. 
A safety zone for vibratory pile driving is unnecessary to prevent 
Level A harassment as source levels would not exceed the Level A 
harassment threshold.

Pile Driving Shut Down and Delay Procedures

    If a protected species observer sees a marine mammal within or 
approaching the exclusion zone prior to start of impact pile driving, 
the observer would notify the on-site construction manager (or other 
authorized individual), who would then be required to delay pile 
driving until the marine mammal has moved outside of the exclusion zone 
or if the animal has not been resighted within 15 minutes. If a marine 
mammal is sighted within or on a path toward the exclusion zone during 
pile driving, pile driving would cease until that animal has cleared 
and is on a path away from the exclusion zone or 15 minutes has lapsed 
since the last sighting.

Soft-Start Procedures

    A ``soft-start'' technique would be used at the beginning of each 
pile installation to allow any marine mammal that may be in the 
immediate area to leave before the pile hammer reaches full energy. For 
vibratory pile driving, the soft-start procedure requires contractors 
to initiate noise from the vibratory hammer for 15 seconds at 40-60 
percent reduced energy followed by a 1-minute waiting period. The 
procedure would be repeated two additional times before full energy may 
be achieved. For impact hammering, contractors would be required to 
provide an initial set of three strikes from the impact hammer at 40 
percent energy, followed by a 1-minute waiting period, then two 
subsequent three-strike sets. The soft-start procedure would be 
conducted prior to driving each pile if vibratory hammering ceases for 
more than 30 minutes.
    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the

[[Page 51952]]

means of effecting the least practicable adverse impact on the affected 
marine mammal species and stocks and their habitat. Our evaluation of 
potential measures included consideration of the following factors in 
relation to one another: (1) The manner in which, and the degree to 
which, the successful implementation of the measure is expected to 
minimize adverse impacts to marine mammals; (2) the proven or likely 
efficacy of the specific measure to minimize adverse impacts as 
planned; and (3) the practicability of the measure for applicant 
implementation, including consideration of personnel safety, and 
practicality of implementation.
    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 impacts on 
marine mammals species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs 
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.
    The Port must designate at least one biologically-trained, on-site 
individual, approved in advance by NMFS, to monitor the area for marine 
mammals 20 minutes before, during, and 20 minutes after all impact pile 
driving activities and call for shut down if any marine mammal is 
observed within or approaching the designated exclusion zone 
(preliminarily set at 70 ft [21 m]). In addition, at least two NMFS-
approved protected species observers would conduct behavioral 
monitoring at least two days per week to estimate take and evaluate the 
behavioral impacts pile driving has on marine mammals out to the Level 
B harassment isopleths. Note that for impact hammering, this distance 
is about 1.3 mi (2 km). For vibratory hammering, this estimated 
distance is about 7 mi (11 km); however, sound will dissipate before 
then (in about 6 mi [9.7 km]) due to the shape and configuration of the 
river. Protected species observers would be provided with the equipment 
necessary to effectively monitor for marine mammals (for example, high-
quality binoculars, spotting scopes, compass, and range-finder) in 
order to determine if animals have entered into the exclusion zone or 
Level B harassment isopleth and to record species, behaviors, and 
responses to pile driving.
    Protected species observers would be required to submit a report to 
NMFS within 120 days of expiration of the IHA or completion of pile 
driving, whichever comes first. The report would include data from 
marine mammal sightings (such as species, group size, and behavior), 
any observed reactions to construction, distance to operating pile 
hammer, and construction activities occurring at time of sighting.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 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].

    Based on the application and subsequent analysis, the impact of the 
described pile driving operations may result in, at most, short-term 
modification of behavior by small numbers of marine mammals within the 
action area. Marine mammals may avoid the area or temporarily alter 
their behavior at time of exposure.
    Current NMFS practice regarding exposure of marine mammals to 
anthropogenic noise is that in order to avoid the potential for injury 
(PTS), cetaceans and pinnipeds should not be exposed to impulsive 
sounds of 180 and 190 dB or above, respectively. This level is 
considered precautionary as it is likely that more intense sounds would 
be required before injury would actually occur (Southall et al., 2007). 
Potential for behavioral harassment (Level B) is considered to have 
occurred when marine mammals are exposed to sounds at or above 160 dB 
for impulse sounds (such as impact pile driving) and 120 dB for non-
pulse noise (such as vibratory pile driving), but below the 
aforementioned thresholds. These levels are also considered 
precautionary.
    Based on empirical measurements taken by WSDOT and Caltrans (which 
are presented in the Description of Specified Activities section 
above), estimated distances to NMFS' current threshold sound levels 
from pile driving during the proposed construction activities are 
presented in Table 3. Effects from the removal of the 177 wood piles 
upstream from the main construction site are included in the 6-mi (9.7 
km) Level B isopleth (based at Terminal 5) due to the river bend. The 
70-ft distance to the Level A harassment threshold provides protected 
species observers plenty of time and adequate visibility to prevent 
marine mammals from entering the area during impact pile driving. This 
would prevent marine mammals from being exposed to sound levels that 
reach the Level A harassment threshold.

            Table 3--Modeled Underwater Distances to NMFS' Marine Mammal Harassment Threshold Levels
----------------------------------------------------------------------------------------------------------------
                                                             Level B harassment
                                    Level A  (190/180 dB)         (160 dB)         Level B harassment  (120 dB)
----------------------------------------------------------------------------------------------------------------
Impact hammering..................  21 m (70 ft) without   1.3 mi (2 km)........  n/a.
                                     sound attenuation
                                     device.
Vibratory hammering...............  n/a..................  n/a..................  6 mi (9.7 km).
----------------------------------------------------------------------------------------------------------------

    The estimated number of marine mammals that could be harassed was 
based on the Army Corps of Engineers' evaluation of pinniped predation 
on fish near the Bonneville Dam in 2010. Based on the 2010 Steller sea 
lion counts at Bonneville Dam, the Port requested a total take of 50 
Steller sea lions. This number was reached based on the estimated 75 
individuals that passed through the action area in 2010 during their 
migration to and from Bonneville Dam, for a total of 150 individual 
trips through the action area. Since all pile installation would occur 
between November 1 and February 28, the peak of the run in April and 
May would be avoided. Steller sea lion presence at the

[[Page 51953]]

dam in January and February 2010 represented (conservatively) less than 
a third of the total run for the year. Therefore, the Port estimated 
that no more than one-third of the total run of Steller sea lions 
(approximately 25 individuals) could be exposed to Level B harassment. 
Since each individual could potentially be exposed on both the upstream 
and downstream trip, a total of 50 takes of Steller sea lions could 
occur. Upon further consultation with NMFS Northwest Regional Office, 
and in consideration of steadily increasing numbers of Steller sea 
lions since 2008, NMFS is proposing to increase the number of Steller 
sea lions that could be exposed to Level B harassment. This is based on 
the fact that abundance estimates increased three-fold between 2009 and 
2010, and may continue. Therefore, it is reasonable to assume that 
2,025 individuals may make the trip to and from the dam during the 
proposed activity (based on a conservative three-fold increase in 2011, 
2012, and again in 2013). Considering the avoidance of the peak run and 
potential exposure during the upstream and downstream migration, NMFS 
proposes to authorize the incidental take, by Level B harassment only, 
of 1,350 Steller sea lion exposures (accounting for one-third of the 
total run--about 675 animals--traveling to and from the dam). In 
addition, the Port requested take of 60 California sea lions (based on 
the same analysis that was applied for Steller sea lions) and six 
harbor seals (the maximum number of harbor seals documented at 
Bonneville Dam since 2002). These numbers take the proposed mitigation 
measures into consideration, but are conservative and represent the 
maximum number of animals expected to occur within the Level B 
harassment isopleth. The actual number of animals that may be harassed 
is likely to be significantly less.

Negligible Impact and Small Numbers Analysis and Determination

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 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.'' In making a negligible impact determination, 
NMFS considers a number of factors which include, but are not limited 
to, number of anticipated injuries or mortalities (none of which would 
be authorized here), number, nature, intensity, and duration of Level B 
harassment, and the context in which takes occur.
    As described above, marine mammals would not be exposed to 
activities or sound levels which would result in injury (PTS), serious 
injury, or mortality. Pile driving would occur in shallow coastal 
waters of the Columbia River. The action area (waters around Terminal 
5) is not considered significant habitat for pinnipeds. The closest 
haul-out is 50 mi (80 km) away, which is outside the project area's 
largest harassment zone. Marine mammals approaching the action area 
would likely be traveling or opportunistically foraging. The amount of 
take the Port requested for each species, and NMFS proposes to 
authorize, is considered small (less than five percent) relative to the 
estimated populations of 22,380 Pacific harbor seals, 238,000 
California sea lions, and 30,403 Steller sea lions. Marine mammals may 
be temporarily impacted by pile driving noise. However, marine mammals 
are expected to avoid the area, thereby reducing exposure and impacts. 
Pile driving activities are expected to occur for approximately 101 
days. Furthermore, this section of the Columbia River is a highly 
industrialized area, so animals are likely tolerant or habituated to 
anthropogenic disturbance, including low level vibratory pile driving 
operations, and noise from other anthropogenic sources (such as 
vessels) may mask construction related sounds. There is no anticipated 
effect on annual rates of recruitment or survival of affected marine 
mammals.
    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 mitigation and monitoring 
measures, NMFS preliminarily determines that the proposed pile driving 
would result in the incidental take of small numbers of marine mammals, 
by Level B harassment only, and that the total taking would have a 
negligible impact on the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action.

Endangered Species Act (ESA)

    The Steller sea lion is listed as endangered under the ESA with 
confirmed occurrence within the action area. NMFS is in the process of 
consulting with the Port and will consult internally on the issuance of 
an IHA under section 101(a)(5)(A) of the MMPA for the take of Steller 
sea lions incidental to the proposed activity. ESA consultation will be 
concluded prior to a determination on the issuance of a final IHA.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, NMFS is preparing an Environmental 
Assessment (EA) to consider the direct, indirect, and cumulative 
effects to marine mammals and other applicable environmental resources 
resulting from issuance of a one-year IHA and the potential issuance of 
additional authorizations for incidental harassment for the ongoing 
project. Upon completion, this EA will be available on the NMFS website 
listed in the beginning of this document.

    Dated: August 10, 2011.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2011-21248 Filed 8-18-11; 8:45 am]
BILLING CODE 3510-22-P


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