[Federal Register Volume 88, Number 170 (Tuesday, September 5, 2023)]
[Notices]
[Pages 60645-60648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19016]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD220]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to In-Water Construction on Bainbridge 
Island, Washington

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

ACTION: Notice; issuance of renewal 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 a Renewal incidental harassment authorization 
(IHA) to Washington State Department of Transportation (WSDOT) Ferries 
Division to incidentally harass marine mammals incidental to the 
Bainbridge Island Ferry Terminal Overhead Loading Replacement Project 
on Bainbridge Island, Washington within the Puget Sound.

DATES: This renewal IHA is valid from September 16, 2023 through 
September 15, 2024.

ADDRESSES: Electronic copies of the original application, Renewal 
request, and supporting documents (including NMFS Federal Register 
notices of the original proposed and final authorizations, and the 
previous IHA), 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 below.

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

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (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, an incidental harassment authorization is issued.
    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 such species or stocks for 
taking for certain subsistence uses (referred to here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in Section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed 1 year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a renewal for this activity, and 
requested public comment on a potential renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time 1-year Renewal IHA following notice to the public providing an 
additional 15 days for public comments when (1) up to another year of 
identical, or nearly identical, activities as described in the Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice is planned or (2) the activities as described in the Description 
of the Specified Activities and Anticipated Impacts section of the 
initial IHA issuance notice would not be completed by the time the 
initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. A request for renewal is received no later than 60 days prior to 
the needed Renewal IHA effective date (recognizing that the Renewal IHA 
expiration date cannot extend beyond 1 year from expiration of the 
initial IHA).
    2. The request for renewal must include the following:
    <bullet> An explanation that the activities to be conducted under 
the requested Renewal IHA are identical to the activities analyzed 
under the initial IHA, are a subset of the activities, or include 
changes so minor (e.g., reduction in pile size) that the changes do not 
affect the previous analyses, mitigation and monitoring requirements, 
or take estimates (with the exception of reducing the type or amount of 
take).
    <bullet> A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
    3. Upon review of the request for renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

History of Request

    On September 16, 2022, NMFS issued an IHA to WSDOT to take marine 
mammals incidental to two in-water construction projects on Bainbridge 
Island, Washington, in the Puget Sound: the Bainbridge Island Ferry 
Terminal Overhead Loading Replacement Project and Eagle Harbor 
Maintenance Facility Slip F Improvement Project (87 FR 58313), 
effective from September 16, 2022 through September 15, 2023. On 
February 15, 2023, NMFS received an application for the renewal of that 
initial IHA. As described in the application for the Renewal IHA, the 
activities for which incidental take is requested consist of activities 
that are covered by the initial authorization but

[[Page 60646]]

will not be completed prior to its expiration. As required, the 
applicant also provided a preliminary monitoring report which confirms 
that the applicant has implemented the required mitigation and 
monitoring, and which also shows that no impacts of a scale or nature 
not previously analyzed or authorized have occurred as a result of the 
activities conducted. The notice of the proposed Renewal incidental 
harassment authorization was published on July 26, 2023 (88 FR 48194).

Description of the Specified Activities and Anticipated Impacts

    The WSDOT construction project consists of the Bainbridge Ferry 
Overhead Loading Replacement Project (the Bainbridge Project) and the 
Eagle Harbor Slip F Project (the Eagle Harbor Project). The Bainbridge 
Project consists of replacing the timber trestle and fixed steel 
portions of the overhead loading structure. This will require the 
installation of temporary work platforms, installation of a temporary 
walkway, installation of a new permanent walkway, the removal of the 
existing overhead loading walkway, and removal of all temporary work 
platforms and walkways. The Eagle Harbor Project consists of improving 
the maintenance efficiency of the facility. This will require replacing 
the existing gangplank system with a pile supported trestle, replacing 
the existing pair of timber dolphins with a pair of steel wingwalls and 
two fixed dolphins, and the removal of the existing timber walkway/
trestle, four timber pile dolphins, and a U-float.
    In total, the initial Bainbridge Project included the installation 
and removal of 39 24-inch (in) diameter temporary steel pipe piles, the 
installation of 26 permanent piles (14 30-in and 12 36-in steel pipe 
piles), and the removal of 76 12-in timber piles. All temporary and 
permanent piles would be installed first using a vibratory hammer to 
within 5 feet (ft; 1.5 meter (m)) of tip elevation, and then driven 
with an impact hammer to verify bearing capacity. The existing timber 
piles would be removed using a vibratory hammer. The vibratory and 
impact installation and vibratory extraction of the piles were expected 
to take up to 57 days of in-water work. The initial Eagle Harbor 
Project expected the installation of a new trestle supported by 9 24-in 
and 2 36-in steel pipe piles, the installation of the pair of steel 
wingwalls which would consist of 4 36-in steel reaction piles and 2 36-
in fender piles, the installation of 2 fixed dolphins which would 
consist of 4 30-in diameter steel reaction piles and 1 36-inch diameter 
fender pile, and the removal of 186 12-in timber piles and 4 18-in 
steel piles. The piles supporting the trestle would be installed first 
using a vibratory hammer to within 5 ft (1.5 m) of tip elevation, and 
then driven with an impact hammer to verify bearing capacity. The 
installation of the wingwall and dolphin piles and the removal of the 
steel and timber piles would use a vibratory hammer only. The vibratory 
and impact installation and vibratory extraction of the piles was 
expected to take up to 31 days of in-water work.
    Under the initial IHA, all work associated with the Eagle Harbor 
Slip F Project was completed over a 22-day period with use of a 
vibratory and impact hammer. For the Bainbridge Ferry Terminal Overhead 
Loading Replacement Project, all project related pile installation 
activities were completed over a 33-day period with use of a vibratory 
and impact hammer.
    This renewal is to cover the subset of the activities described for 
the initial IHA that will not be completed during the effective IHA 
period. WSDOT plans to remove all 45 12-in timber piles through 
vibratory means between September 2023 and September 2024. WSDOT 
estimates it will take 30 minutes to remove a single pile, with up to 
10 piles removed per day.
    The likely or possible impacts of the WSDOT's planned activity on 
marine mammals could involve both non-acoustic and acoustic stressors 
and is unchanged from the impacts described in the initial IHA. 
Potential non-acoustic stressors could result from the physical 
presence of the equipment, vessels, and personnel; however, any impacts 
to marine mammals are expected to primarily be acoustic in nature. 
Acoustic stressors include effects of heavy equipment operation during 
pile removal. The effects of underwater noise from the WSDOT's planned 
activities have the potential to result in Level B harassment of marine 
mammals in the action area.

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is authorized here may be found in the notices of the proposed and 
final IHAs for the initial authorization (87 FR 48623, August 10, 2022; 
87 FR 58313, September 26, 2022). As previously mentioned, this request 
is for a subset of the activities authorized in the initial IHA that 
would not be completed prior to its expiration. The location, timing, 
and nature of the activities, including the types of equipment planned 
for use, are identical to those described in the previous notices. The 
Renewal IHA is effective from September 16, 2023 through September 15, 
2024.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for take is authorized here, including information on abundance, 
status, distribution, and hearing, may be found in the notices of the 
proposed IHA for the initial authorization (87 FR 48623, August 10, 
2022). NMFS has reviewed the monitoring data from the initial IHA, 
recent draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and other scientific literature, and determined that 
neither this nor any other new information affects which species or 
stocks have the potential to be affected or the pertinent information 
in the Description of the Marine Mammals in the Area of Specified 
Activities contained in the supporting documents for the initial IHA.

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which take is 
authorized here may be found in the Federal Register notices of the 
proposed IHA for the initial authorization (87 FR 48623, August 10, 
2022). NMFS has reviewed the monitoring data from the initial IHA, 
recent draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, other scientific literature, and the public comments, 
and determined that neither this nor any other new information affects 
our initial analysis of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the Federal Register 
notices of the proposed and final IHAs for the initial authorization 
(87 FR 48623, August 10, 2022; 87 FR 58313, September 26, 2022). 
Specifically, the source levels, days of operation, and marine mammal 
density and occurrence data applicable to this authorization remain 
unchanged from the previously issued IHA. Similarly, the stocks taken, 
methods of take, and types of take remain unchanged from the initial 
IHA, as do the number of takes, which are indicated below in Table 1.

[[Page 60647]]



       Table 1--Amount of Taking, by Level B Harassment, by Species and Stock and Percent of Take by Stock
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                   Species                                 Stock                Proposed take   Percent of stock
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Harbor seal.................................  Washington Northern Inland                    60               0.5
                                               Waters.
California sea lion.........................  US............................                 3              <0.1
Steller sea lion............................  Eastern.......................                 1              <0.1
Killer whale................................  West Coast Transient..........             \1\ 6               1.7
Harbor porpoise.............................  Washington Inland Waters......                 9              <0.1
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\1\Modeled take of 1 increased to typical group size (Ford et al. 2013).

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are identical to those included in 
the Federal Register notice announcing the issuance of the initial IHA, 
and the discussion of the least practicable adverse impact included in 
that document remains accurate (87 FR 48623, August 10, 2022). The 
following measures are included in this renewal:
    <bullet> WSDOT must avoid direct physical interaction with marine 
mammals during construction activity. If a marine mammal comes within 
10 m of such activity, operations must cease and vessels must reduce 
speed to the minimum level required to maintain steerage and safe 
working conditions, as necessary to avoid direct physical interaction;
    <bullet> Pre-start clearance monitoring must be conducted during 
periods of visibility sufficient for the lead Protected Species 
Observer (PSO) to determine the shutdown zones clear of marine mammals. 
Construction may commence when the determination is made;
    <bullet> Pile driving/removal activity must be halted upon 
observation of either a species for which incidental take is not 
authorized or a species for which incidental take has been authorized 
but the authorized number of takes has been met, entering or within the 
harassment zone;
    <bullet> WSDOT will establish and implement the shutdown zones. The 
purpose of a shutdown zone is generally to define an area within which 
shutdown of the activity would occur upon sighting of a marine mammal 
(or in anticipation of an animal entering the defined area). Shutdown 
zones typically vary based on the activity type and marine mammal 
hearing group. Since the Level A harassment threshold is under 10 m for 
all hearing groups, the shutdown zone for all hearing groups will be 10 
m;
    <bullet> WSDOT must also implement shutdown measures for Southern 
Resident killer whales and humpback whales. If Southern Resident killer 
whales or humpback whales are sighted within the vicinity of the 
project areas and are approaching the Level B harassment zone, WSDOT 
must shut down the pile driving equipment to avoid possible take of 
these species. If a killer whale approaches the Level B harassment zone 
during pile driving, and it is unknown whether it is a Southern 
Resident killer whale or a transient killer whale, it must be assumed 
to be a Southern Resident killer whale and WSDOT would implement the 
shutdown measure. The shutdown zone for Southern Resident killer 
whales, humpback whales, and other unauthorized species is 2,175 m;
    <bullet> Prior to the start of pile driving for the day, the PSOs 
must contact the Orca Network to find out the location of the nearest 
marine mammal sightings;
    <bullet> WSDOT must submit a draft report detailing all monitoring 
within 90 calendar days of the completion of marine mammal monitoring 
or 60 days prior to the issuance of any subsequent IHA for this 
project, whichever comes first;
    <bullet> WSDOT must prepare and submit final report within 30 days 
following resolution of comments on the draft report from NMFS;
    <bullet> WSDOT must submit all PSO datasheets and/or raw sighting 
data (in a separate file from the Final Report referenced immediately 
above); and
    <bullet> WSDOT must report injured or dead marine mammals.

Comments and Responses

    NMFS received no public comments.

Determinations

    NMFS has concluded that there is no new information suggesting that 
our analysis or findings should change from those reached for the 
initial IHA. Based on the information and analysis contained here and 
in the referenced documents, NMFS has determined the following: (1) the 
required mitigation measures will effect the least practicable impact 
on marine mammal species or stocks and their habitat; (2) the 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the authorized takes represent small 
numbers of marine mammals relative to the affected stock abundances; 
(4) WSDOT's activities will not have an unmitigable adverse impact on 
taking for subsistence purposes as no relevant subsistence uses of 
marine mammals are implicated by this action, and; (5) appropriate 
monitoring and reporting requirements are included.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an IHA 
renewal) with respect to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take 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 determined that the issuance of the 
initial IHA qualified to be categorically excluded from further NEPA 
review. NMFS has determined that the application of this categorical 
exclusion remains appropriate for this Renewal IHA.

Endangered Species Act (ESA)

    No incidental take of ESA-listed species is proposed for 
authorization or expected to result from this activity. Therefore, NMFS 
has determined that formal consultation under section 7 of the ESA is 
not required for this action.

Renewal

    NMFS has issued a Renewal IHA to WSDOT for the take of marine 
mammals incidental to conducting Bainbridge Island Ferry Terminal 
Overhead Loading Replacement Project on Bainbridge Island, Washington 
within

[[Page 60648]]

the Puget Sound, from September 16, 2023 through September 15, 2024.

    Dated: August 29, 2023.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2023-19016 Filed 9-1-23; 8:45 am]
BILLING CODE 3510-22-P