Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 74113 

implications under Executive Order 

12630. 

Executive Order 12988 (Civil Justice 

Reform) 

This ANRPM meets applicable 

standards in sections 3(a) and 3(b)(2) of 

Executive Order 12988, Civil Justice 

Reform, to minimize litigation, 

eliminate ambiguity, and reduce 

burden. 

Executive Order 13045 (Protection of 

Children) 

FTA has analyzed this ANPRM under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. FTA certifies 

that this action will not cause an 

environmental risk to health or safety 

that might disproportionately affect 

children. 

Executive Order 13175 (Tribal 

Consultation) 

FTA has analyzed this ANPRM under 

Executive Order 13175, dated November 

6, 2000, and believes that it will not 

have substantial direct effects on one or 

more Indian tribes; will not impose 

substantial direct compliance costs on 

Indian tribal governments; and will not 

preempt tribal laws. Therefore, a tribal 

summary impact statement is not 

required. 

Executive Order 13211 (Energy Effects) 

FTA has analyzed this action under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. FTA has 

determined that this action is not a 

significant energy action under that 

order and is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Therefore, 

a Statement of Energy Effects is not 

required. 

Executive Order 12898 (Environmental 

Justice) 

Executive Order 12898 (Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations) and DOT 

Order 5610.2(a) (77 FR 27534, May 10, 

2012) (https://www.transportation.gov/ 

transportation-policy/environmentaljustice/department-transportationorder-56102a) require DOT agencies to 

achieve Environmental Justice (EJ) as 

part of their mission by identifying and 

addressing, as appropriate, 

disproportionately high and adverse 

human health or environmental effects, 

including interrelated social and 

economic effects, of their programs, 

policies, and activities on minority and 

low-income populations. All DOT 

agencies must address compliance with 

Executive Order 12898 and the DOT 

Order in all rulemaking activities. On 

August 15, 2012, FTA’s Circular 4703.1 

became effective, which contains 

guidance for recipients of FTA financial 

assistance to incorporate EJ principles 

into plans, projects, and activities 

(https://www.transit.dot.gov/ 

regulations-and-guidance/fta-circulars/ 

environmental-justice-policy-guidancefederal-transit). 

FTA has evaluated this action under 

the Executive order, the DOT Order, and 

the FTA Circular and FTA has 

determined that this action will not 

cause disproportionately high and 

adverse human health and 

environmental effects on minority or 

low-income populations. 

Regulation Identifier Number 

A Regulation Identifier Number (RIN) 

is assigned to each regulatory action 

listed in the Unified Agenda of Federal 

Regulations. The Regulatory Information 

Service Center publishes the Unified 

Agenda in April and October of each 

year. The RIN number contained in the 

heading of this document can be used 

to cross-reference this rulemaking with 

the Unified Agenda. 

List of Subjects in 49 CFR Part 675 

Mass transportation, Safety. 

(Authority: 49 U.S.C. 5329; 49 CFR 1.91) 

Nuria I. Fernandez, 

Administrator. 

[FR Doc. 2023–23916 Filed 10–27–23; 8:45 am] 

BILLING CODE 4910–57–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 231023–0251] 

RIN 0648–BL79 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Naval 

Magazine Indian Island Ammunition 

Wharf Maintenance and Pile 

Replacement Project, Puget Sound, 

Washington 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule, request for 

comments. 

SUMMARY: NMFS has received a request 

from the U.S. Navy (Navy) for 

authorization to take marine mammals 

incidental to the maintenance and pile 

replacement construction activities at 

the Ammunition Wharf at Naval 

Magazine (NAVMAG) Indian Island in 

Puget Sound, Washington, over the 

course of 5 years (2024–2029). As 

required by the Marine Mammal 

Protection Act (MMPA), NMFS is 

proposing regulations to govern that 

take, and requests comments on the 

proposed regulations. NMFS will 

consider public comments prior to 

making any final decision on the 

issuance of the requested MMPA 

authorization and agency responses will 

be summarized in the final notice of our 

decision. 

DATES: Comments and information must 

be received no later than November 29, 

2023. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2023–0122, by the following 

method: 

• Electronic submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov and enter 

NOAA–NMFS–2023–0122 in the Search 

box, click the ‘‘Comment’’ icon, 

complete the required fields, and enter 

or attach your comments. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on https://www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields if you wish to 

remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, or Adobe PDF 

file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Robert Pauline, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Availability of Navy’s Application, 

Marine Mammal Monitoring Plan, and 

List of References 

A copy of the Navy’s application, 

monitoring plan, and any supporting 

documents, as well as a list of the 

references cited in this document, may 

be obtained online at: https:// 


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74114 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-takingmarine-mammals-incidental-navalmagazine-indian-island. In case of 

problems accessing these documents, 

please call the contact listed above (see 

FOR FURTHER INFORMATION CONTACT). 

Purpose and Need for Regulatory 

Action 

This proposed rule, if adopted, would 

establish a framework under the 

authority of the MMPA (16 U.S.C. 1361 

et seq.) to authorize, for a five-year 

period (2024–2029), take of marine 

mammals incidental to the Navy’s 

construction activities associated with 

maintenance and pile replacement at 

the Ammunition Wharf at NAVMAG 

Indian Island. 

We received an application from the 

Navy requesting 5-year regulations and 

authorization to take multiple species of 

marine mammals. Take would occur by 

Level A and Level B harassment 

incidental to impact and vibratory pile 

driving. Please see Background below 

for definitions of harassment. 

Legal Authority for the Proposed Action 

Section 101(a)(5)(A) of the MMPA (16 

U.S.C. 1371(a)(5)(A)) directs 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 specified 

geographical region for up to 5 years if, 

after notice and public comment, the 

agency makes certain findings and 

issues regulations that set forth 

permissible methods of taking pursuant 

to that activity and other means of 

effecting the ‘‘least practicable adverse 

impact’’ on the affected species or 

stocks and their habitat (see the 

discussion below in the Proposed 

Mitigation section), as well as 

monitoring and reporting requirements. 

Section 101(a)(5)(A) of the MMPA and 

the implementing regulations at 50 CFR 

part 216, subpart R provide the legal 

basis for issuing this proposed rule 

containing 5-year regulations, and for 

any subsequent letters of authorization 

(LOAs). As directed by this legal 

authority, this proposed rule contains 

mitigation, monitoring, and reporting 

requirements. 

Summary of Major Provisions Within 

the Proposed Rule 

The following is a summary of the 

major provisions of this proposed rule 

regarding Navy construction activities. 

These provisions include measures 

requiring: 

• monitoring of the construction areas

to detect the presence of marine 

mammals before beginning construction 

activities; 

• Shutdown of construction activities

under certain circumstances to avoid 

injury of marine mammals; 

• Soft start for impact pile driving to

allow marine mammals the opportunity 

to leave the area prior to beginning 

impact pile driving at full power; and 

• Use of bubble curtains to attenuate

sound levels when impact driving steel 

piles. 

Background 

Section 101(a)(5)(A) of the MMPA (16 

U.S.C. 1361 et seq.) directs the Secretary 

of Commerce (as subsequently delegated 

to NMFS) to allow, upon request, the 

incidental, but not intentional, taking of 

small numbers of marine mammals by 

U.S. citizens who engage in a specified 

activity (other than commercial fishing) 

within a specified geographical region if 

certain findings are made, regulations 

are issued, and notice is provided to the 

public. 

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), and if the permissible 

methods of taking and requirements 

pertaining to the mitigation, monitoring 

and reporting of the 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. 

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). 

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 promulgation 

of regulations and subsequent issuance 

of an incidental take authorization with 

respect to potential impacts on the 

human environment. 

This action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 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 

preliminarily determined that the 

issuance of the proposed rule qualifies 

to be categorically excluded from 

further NEPA review. 

Information in the Navy’s application 

and this document collectively provide 

the environmental information related 

to proposed issuance of these 

regulations and subsequent incidental 

take authorization for public review and 

comment. We will review all comments 

submitted in response to this notice of 

proposed rulemaking prior to 

concluding our NEPA process and prior 

to making a final decision on the request 

for incidental take authorization. 

Summary of Request 

In May 2021, NMFS received a 

request from the Navy requesting 

authorization to take small numbers of 

eight species of marine mammals 

incidental to construction activities at 

the Ammunition Wharf at NAVMAG 

Indian Island. The Navy has requested 

regulations that would establish a 

process for authorizing such take via an 

LOA. NMFS reviewed the Navy’s 

application, and sent initial questions 

regarding the application to the Navy on 

October 5, 2021. The Navy addressed 

the questions and submitted a revised 

LOA application on March 24, 2022. 

After additional questions were sent by 

NMFS, the Navy submitted another 

revised application on May 13, 2022, 

and the revised application was deemed 

adequate and complete on June 9, 2022. 

The application was published for 

public review and comment on August 

4, 2022 (87 FR 47722). Following 

publication of the application, the Navy 

delayed the project start date by 1 year. 

The Navy requests authorization to 

take eight species of marine mammals 

by Level B harassment. They have also 

requested authorization to take one of 

these species by Level A harassment. 

Neither the Navy nor NMFS expects 

serious injury or mortality to result from 

this activity. The proposed regulations 

would be valid for 5 years (2024–2029). 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 74115 

Description of Proposed Activity 

Overview 

The Navy proposes to replace 

defective structural concrete and fender 

piles as well as conduct maintenance 

and repair activities on the Ammunition 

Wharf at NAVMAG Indian Island. 

Maintaining this wharf structure is vital 

to sustaining the Navy’s mission and 

ensuring readiness. The Navy proposes 

to replace up to 118 structural concrete 

piles or fender piles, conduct 

maintenance, and engage in repair 

activities over a 7-year period on the 

Ammunition Wharf. However, the 

proposed LOA would only be valid for 

5 years. The Navy plans to conduct 

necessary work, including impact and 

vibratory pile driving, to replace and 

maintain the wharf structure. Under the 

proposed 5-year LOA, up to 110 

structurally unsound structural piles or 

fender piles would be replaced. 

Structural concrete piles would be 

replaced with 24-inch concrete piles 

and old fender piles would be replaced 

with 14-inch steel H piles or 18.75-inch 

composite piles. Up to eight steel piles 

may also be installed in addition to the 

structural concrete piles if necessary. 

The 2 years following the expiration of 

the LOA would consist of removal and 

installation of concrete piles, and 

maintenance and repair work. The Navy 

would request incidental take 

authorizations as necessary for the final 

2 years of work. 

Dates and Duration 

The proposed regulations would be 

valid for a period of 5 years from 

October 1, 2024, until September 30, 

2029. All pile driving would be 

conducted during the prescribed inwater work window of October 1 to 

January 15 to avoid conducting 

activities when juvenile salmonids are 

most likely to be present. A conservative 

estimate of annual pile driving days 

over the duration of the 5-year LOA 

based on the assumption that pile 

driving rates would be relatively slow 

would be approximately 24 days per 

year with up to 22 concrete piles or 

fender piles, and up to 2 steel piles 

installed per year. Conservatively, one 

concrete pile would be installed per day 

using jetting followed by proofing with 

an impact hammer. There may be extra 

days for additional proofing or weather/ 

equipment delays. Actual daily 

production rates may be higher (often 

two piles are installed in a day), 

resulting in fewer actual pile driving 

days. 

Specific Geographic Region 

NAVMAG Indian Island is located 

near Port Hadlock in Jefferson County, 

Washington, southeast of Port 

Townsend, at the northeast corner of the 

Olympic Peninsula (Figure 1). The 

island is approximately 8 kilometers 

(km) long and 2 km wide, and 

comprises approximately 11 km square 

(km2). NAVMAG Indian Island is 

located between Port Townsend Bay 

and Kilisut Harbor. The Federal 

Government owns the island and 

provides an easement on a small portion 

of the southern extent of the island to 

Washington State Department of 

Transportation for access to 

Marrowstone Island along State Route 

116. NAVMAG Indian Island is the West 

Coast ammunition ordnance storage 

center supporting the U.S. Navy Pacific 

Fleet. 

NAVMAG Indian Island occupies 

approximately 19 km of shoreline 

within Port Townsend Bay. There are 

two marine structures located at 

NAVMAG Indian Island, the 

Ammunition Wharf and the Small Craft 

Pier, but only the Ammunition Wharf 

activities are addressed in this proposed 

rule. Its primary mission is to load, 

offload, and provide storage and 

logistics management for ordnance used 

on Navy vessels. 

BILLING CODE 3510–22–P 


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74116 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 

BILLING CODE 3510–22–C 

Detailed Description of the Specified 

Activity 

NAVMAG Indian Island is the West 

Coast ammunition ordnance storage 

center supporting the U.S. Navy Pacific 

Fleet. Its primary mission is to load, 

offload, and provide storage and 

logistics management for ordnance used 

on Navy vessels. Construction of the 

Ammunition Wharf was completed in 

1979, and there are a total of 1,783 piles 

in the Ammunition Wharf: 1,391 

structural piles, 306 fender piles and 86 

Operations Building piles. 

The Ammunition Wharf was 

originally constructed using precast 

concrete piles. As a result of the steam 

curing process used at that time, an 

unknown quantity of piling is 

susceptible to a potentially catastrophic 

condition called Delayed Ettringite 

Formation (DEF). DEF is a result of high 

early temperatures in the concrete, 

which prevents the normal formation of 

ettringite. DEF occurs rapidly and 

without warning. 

The Navy schedules inspections on 

waterfront facilities that usually occur 

every 3 years, but due to DEF at the 

Ammunition Wharf, inspections for that 

structure occur every two years. Based 

on the most recent inspection in 2021, 

there are 161 piles (158 under 

Ammunition Pier and three under the 

Operations Building at Ammunition 

Wharf) with some appreciable level of 

DEF damage (most or all of those piles 

will be replaced). More piles with DEF 

damage may be detected and therefore 

may need to be replaced over the 

duration of the LOA. 

Table 1 shows the details of the 

proposed construction activities which 

are described below in greater detail. 


khammond on DSKJM1Z7X2PROD with PROPOSALSEP30OC23.000</GPH>

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c:::JNavy Property Souridaiy 

c:lOockaMJWhal'fs ~+~ $ ~~-w,;.--~--~*~ 

0 

...... 0 • 

Figure 1-- Location of Ammunition (Ammo) Wharf on Naval Magazine Indian Island 
Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 74117 

TABLE 1—PROJECT COMPONENTS FOR PILE REPLACEMENT FOR THE AMMUNITION WHARF

Wharf structure (in-water construction) Construction details 

Total Piles .......................................................................... Up to 118 piles installed over 5 years (including up to eight steel piles, with the remainder concrete). 

Quantity of concrete piles (24-inch) ................................... Up to 22 per year over 5 years. 

Quantity of permanent steel piles (36-inch) ....................... Up to 2 per year (Maximum of 8) over 5 years (Currently no steel pile installation is 

planned, installation would depend on future pile inspections). 

Pile Removal Method ......................................................... Cutting. 

Pile Installation Method ...................................................... Jetting and impact driving of concrete piles; Vibratory and impact driving of steel 

piles. No simultaneous pile driving will occur. 

Quantity of piles above ¥30 feet MLLW ........................... All. 

Maximum number of piles driven per day (approximately) Two concrete piles per day. One steel pile per day. 

Total duration of impact pile driving ................................... No more than 45 minutes per day (mean = 10 minutes for concrete piles; 15 minutes 

for steel piles). 

Maximum duration of vibratory pile driving ........................ No more than 30 minutes (mean = 10 minutes per steel pile). 

Marine Construction Duration (including in-water restrictions).3.5 months per year (In water work window: October 1–January 15). 

Removal of Existing Piles 

After demolition of the deck portions 

of the wharf located above the 

waterline, three methods of pile removal 

(cutting/chipping, clamshell removal, 

and direct pull) may be used. However, 

hydraulic cutting will be the primary 

method of pile removal due to working 

under the wharf and the DEF damage to 

the piles. In some cases, piles may be 

cut at or below the mudline, with the 

below-mudline portion of the pile left in 

place. None of these pile removal 

activities are anticipated to result in 

take of marine mammals; therefore, they 

are not discussed further beyond the 

brief elaboration on jetting and pile 

cutting provided below. 

Pile Installation 

Three methods of pile installation for 

concrete and steel piles may be used 

(vibratory, jetting, and impact) 

depending on the type of pile and site 

conditions. Only one pile will be 

installed at a time; no simultaneous pile 

driving will occur. These methods are 

described below. 

The primary methods of concrete pile 

installation would be water jetting to 

within 3 meters (m) of final depth and 

then impact pile driving to set or proof 

the final 3 m. Water jetting aids the 

penetration of a pile into a dense sand 

or sandy gravel stratum. Water jetting 

utilizes a carefully directed and 

pressurized flow of water at the pile tip, 

which disturbs a ring of soils directly 

beneath it. The jetting technique 

liquefies the soils at the pile tip during 

pile placement, reducing the friction 

and interlocking between adjacent sub 

grade soil particles around the water jet. 

For load-bearing structures, an impact 

hammer is typically required to strike a 

pile a number of times to ensure it has 

met the load-bearing specifications; this 

is referred to as ‘‘proofing.’’ Loadbearing piles installed with water jetting 

would still need to be proofed with an 

impact pile driver. 

A vibratory hammer may be used to 

install the structural steel piles and 

fender piles. The primary method of 

pile installation for steel piles would be 

vibratory to within 3 m of final depth 

and then impact pile driving to set or 

proof the final 3 m. The vibratory pile 

driver method is a technique that may 

be used in pile installation where the 

substrate allows. Use of this technique 

may be limited in very hard substrates. 

This process begins by placing a choker 

cable around a pile and lifting it into 

vertical position with a crane. The pile 

is then lowered into position and set in 

place at the mudline. The pile is held 

steady while the vibratory driver installs 

the pile to the required tip elevation. In 

some substrates, a vibratory driver may 

be unable to advance a pile until it 

reaches the required depth. In these 

cases, an impact hammer may be used 

to advance the pile to the required 

depth. 

Impact hammers may be used to proof 

concrete piles that have been jetted to 

depth or steel piles that have been 

driven using the vibratory method. 

Proofing involves impact pile driving to 

determine if the pile has been driven to 

the proper load-bearing specifications 

within the substrate. Proofing of 

concrete piles at the Ammunition Wharf 

in 2015 and 2016 required 200–600 

strikes per pile to complete (Navy, 

2016). 

Impact hammers have a heavy piston 

that moves up and down striking the top 

of the pile and driving the pile into the 

substrate from the downward force of 

the hammer. Impact hammer pile 

proofing can typically take a minute or 

less to 30 minutes depending on pile 

type, pile size, and conditions (i.e., 

bedrock, loose soils, etc.) to reach the 

required tip elevation. 

The Navy states that piles will be 

advanced to the extent practicable with 

a vibratory driver and only impact 

driven when required for proofing or 

when a pile cannot be advanced with a 

vibratory driver due to hard substrate 

conditions. 

Existing piles that are structurally 

sound may require additional repair 

activities. Such activities could include 

wetwell repair; recoating of piles and 

mooring fittings; installation or 

replacement of passive cathode 

protection systems; repair and 

replacement of pile caps; concrete 

repair; mooring foundation and 

substructure repair; replacement of 

components (e.g. hand rails, safety 

ladders, light poles); and rewrapping or 

replacement of steel cable straps on 

dolphins. These repairs are described in 

greater detail in the Navy’s application 

but would not result in the take of 

marine mammals and are not discussed 

further. 

Operation of the following equipment 

types is not reasonably expected to 

result in take of marine mammals and 

will not be discussed further beyond the 

brief summaries provided below: 

• Jetting produces much lower sound 

levels (approximately 147.5 decibel (dB) 

Root Mean Square (RMS); NAVFAC SW, 

2020) than vibratory pile driving 166 dB 

RMS (Navy, 2015). The sounds 

produced by jetting are of similar 

frequencies to the sounds produced by 

vessels, and are anticipated to diminish 

to background noise levels (or be 

masked by background noise levels) in 

Port Townsend Bay. 

• Hydraulic cutting would be used be 

used to assist with removal of piles. 

Similar to jetting, the sounds produced 

by cutting are of similar frequencies to 

the sounds produced by vessels 

(NAVFAC SW, 2020), and are 

anticipated to diminish to background 

noise levels (or be masked by 


khammond on DSKJM1Z7X2PROD with PROPOSALS
74118 Federal Register / Vol. 88, No. 208 / Monday, October 30, 2023 / Proposed Rules 

background noise levels) in Port 

Townsend Bay relatively close to the 

Ammunition Wharf. Cutting of 24-inch 

concrete piles also produces much 

lower sound levels (approximately 

141.4 decibel (dB) Root Mean Square 

(RMS); NAVFAC SW, 2020) than 

vibratory pile driving 166 dB RMS 

(Navy, 2015). 

Proposed mitigation, monitoring, and 

reporting measures are described in 

detail later in this document (please see 

Proposed Mitigation and Proposed 

Monitoring and Reporting). 

Description of Marine Mammals in the 

Area of Specified Activities 

To characterize potential species 

occurrence, the Navy’s application 

utilized density information available 

for Puget Sound, and recent research 

and survey information conducted onsite or in Puget Sound. The Navy also 

discussed species occurrence with local 

species experts and reviewed incidental 

sighting reports from the Orca Network 

(Whidbey Island, WA) and Center for 

Whale Research (Friday Harbor, WA) for 

verified or reasonably verified species 

presence, as well as information on 

seasonal, intermittent, or unusual 

species occurrences. 

Sections 3 and 4 of the application 

summarize available information 

regarding status and trends, distribution 

and habitat preferences, and behavior 

and life history of the potentially 

affected species. NMFS fully considered 

all of this information, and we refer the 

reader to these descriptions instead of 

reprinting the information. Additional 

information regarding population trends 

and threats may be found in NMFS’ 

Stock Assessment Reports (SARs; 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-stock-assessments) 

and more general information about 

these species (e.g., physical and 

behavioral descriptions) may be found 

on NMFS’ website (https://

www.fisheries.noaa.gov/find-species). 

Table 2 lists all species or stocks for 

which take is expected and proposed to 

be authorized for this activity, and 

summarizes information related to the 

population or stock, including 

regulatory status under the MMPA and 

Endangered Species Act (ESA) and 

potential biological removal (PBR), 

where known. PBR is defined by the 

MMPA as the maximum number of 

animals, not including natural 

mortalities, that may be removed from a 

marine mammal stock while allowing 

that stock to reach or maintain its 

optimum sustainable population (as 

described in NMFS’ SARs). While no 

serious injury or mortality is expected to 

occur, PBR and annual serious injury 

and mortality from anthropogenic 

sources are included here as gross 

indicators of the status of the species or 

stocks and other threats. 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’ stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. For 

some species, this geographic area may 

extend beyond U.S. waters. All stocks 

managed under the MMPA in this 

region are assessed in NMFS’ U.S. 

Pacific Marine Mammal Stock 

Assessment Report. All values 

presented in Table 2 are the most recent 

available at the time of publication and 

are available online at: https:// 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments. 

TABLE 2—MARINE MAMMAL SPECIES 4 LIKELY TO OCCUR NEAR THE PROJECT AREA THAT MAY BE TAKEN BY THE NAVY’S

ACTIVITIES

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 1

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 2

PBR Annual 

M/SI 3

Order Artiodactyla—Cetacea—Mysticeti (baleen whales) 

Family Eschrichtiidae: 

Gray Whale ...................... (Eschrichtius robustus) ........... Eastern N Pacific ................... -,-, N 26,960 (0.05, 25,849, 2016) .. 801 131 

Family Balaenopteridae 

(rorquals): 

Humpback Whale ............. Megaptera novaeangliae ........ Central America/Southern 

Mexico-California-OregonWashington.

E, D, Y 1,496 (0.171, 1,284, 2021) .... 3.5 14.9 

Mainland Mexico-CaliforniaOregon-Washington.T, D, Y 3,477 (0.101, 3,185, 2018) .... 43 22 

Hawaii ..................................... -, -, N 11,278 (0.56, 7,265, 2020) .... 127 27.09 

Minke Whale .................... Balaenoptera acutorostrata .... CA/OR/WA ............................. -, -, N 915 (0.792, 509, 2018) .......... 4.1 ≥0.59 

Odontoceti (toothed whales, dolphins, and porpoises) 

Family Phocoenidae (porpoises): 

Dall’s Porpoise ................. Phocoenoides dalli ................. CA/OR/WA ............................. -, -, N 16,498 (0.61, 10,286, 2019) .. 99 ≥0.66 

Harbor Porpoise ............... Phocoena phocoena .............. Washington Inland Waters ..... -, -, N 11,233 (0.37, 8,308, 2015) .... 66 ≥7.2 

Family Delphinidae: 

Killer Whale ...................... Orcinus orca ........................... West Coast Transient ............ -, -, N 349 (N/A, 349, 2018) ............. 3.5 0.4 

Eastern North Pacific Southern Resident.E, D, Y 74 (N/A, 74, 2021) ................. 0.13 ≥0.4 

Order Carnivora—Pinnipedia 

Family Otariidae (eared seals 

and sea lions): 

CA Sea Lion ..................... Zalophus californianus ........... U.S ......................................... -, -, N 257,606 (N/A,233,515, 2014) 14011 >320 

Steller Sea Lion ................ Eumetopias jubatus ................ Eastern ................................... -, -, N 43,201 (N/A, 43,201, 2017) ... 2,592 112 

Family Phocidae (earless 

seals): 

Harbor Seal ...................... Phoca vitulina ......................... Washington Northern Inland 

Waters.

-, -, N 11,036 5 (UNK, UNK, 1999) ... UND 9.8 


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TABLE 2—MARINE MAMMAL SPECIES 4 LIKELY TO OCCUR NEAR THE PROJECT AREA THAT MAY BE TAKEN BY THE NAVY’S

ACTIVITIES—Continued 

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 1

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 2

PBR Annual 

M/SI 3

Northern Elephant Seal .... Mirounga angustirostris .......... CA Breeding ........................... -, -, N 187,386 (NA, 85,369, 2013) .. 5122 13.7 

1Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the 

ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or 

which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically 

designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessmentreports. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. 3These 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 Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy’s Committee on Taxonomy 

(https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/; Committee on Taxonomy (2022)). 5The abundance estimate for this stock is greater than 8 years old and is therefore not considered current. PBR is considered undetermined for this stock, as there 

is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as these represent the best available information for use in this document. 

As indicated above, all nine species 

(with nine managed stocks) in Table 2 

temporally and spatially co-occur with 

the activity to the degree that take is 

reasonably likely to occur. However, no 

take is proposed for authorization for 

killer whales and humpback whales for 

the reasons provided below. 

Southern resident killer whales do 

occur occasionally in the waters north 

of NAVMAG Indian Island although as 

of June 2023 they have not been 

reported near Port Townsend since 

December 2020 and then only by 

hydrophones so the exact locations are 

unknown (Orca Network, 2023). It is 

unlikely any would occur close to the 

Ammunition Wharf. Occurrence in the 

inland waters are low in the winter 

through early spring (Orca Network, 

2023), when project activities would 

occur. While critical habitat has been 

designated in Puget Sound for southern 

resident killer whales, the designation 

does not include the Port Townsend/ 

Indian Island/Walan Point naval 

restricted area which extends out 500 m 

from the Ammunition Wharf (73 FR 

78633; December 23, 2008). In contrast 

to southern resident killer whales, 

which exclusively prey on fish, the 

main diet of transient killer whales 

consists of marine mammals. Within 

Puget Sound, transient killer whales 

primarily hunt pinnipeds and 

porpoises, though some groups will 

occasionally target larger whales. The 

seasonal movements of transients are 

largely unpredictable, although there is 

a tendency to investigate harbor seal 

haulouts off Vancouver Island more 

frequently during the pupping season in 

August and September (Baird, 1994; 

Ford, 2014). The movements and 

locations of southern resident killer 

whales are tracked daily by the Center 

for Whale Research and the Orca 

Network, therefore, exposures to noise 

from pile driving can be avoided if 

southern resident killer whales are 

known to be near the project area. 

Similarly, humpback whales are 

considered to be regular, but not 

frequent visitors to Puget Sound, 

especially south of Admiralty Inlet. 

Opportunistic sightings primarily occur 

April through July in Puget Sound, 

although sightings have been reported 

in every month of the year. In addition 

to the timing of the planned activity, 

which minimizes potential for 

occurrence of humpback and killer 

whales, the Navy proposes to 

implement shutdown procedures for all 

cetaceans as needed to avoid 

harassment. For highly visible species, 

such as large whales, this is expected to 

be successful in avoiding any potential 

for take. No take of these species is 

anticipated or proposed for 

authorization, and we do not discuss 

them further. 

Gray Whale 

Two North Pacific populations of gray 

whales are formally recognized: the 

Western Pacific subpopulation (also 

known as the Western North Pacific or 

the Korean-Okhotsk population) (WNP) 

that is critically endangered and the 

Eastern Pacific population (also known 

as the Eastern North Pacific or the 

California-Chukchi population) (ENP) 

that appears to have recovered from 

exploitation and was removed from 

listing under the ESA in 1994 (Carretta 

et al., 2016). The two populations have 

historically been considered 

geographically isolated from each other; 

however, data from satellite-tracked 

whales indicate that there is some 

overlap between the stocks. Two WNP 

whales were tracked from Russian 

foraging areas along the Pacific rim to 

Baja California (Mate et al., 2011), and, 

in one case where the satellite tag 

remained attached to the whale for a 

longer period, a WNP whale was tracked 

from Russia to Mexico and back again 

(International Whaling Commission 

[IWC, 2012]). Between 22–24 WNP 

whales are known to have occurred in 

the eastern Pacific through comparisons 

of ENP and WNP photo-identification 

catalogs (IWC, 2012; Weller et al., 2012; 

Burdin et al., 2011). Urban et al. (2013) 

compared catalogs of photo-identified 

individuals from Mexico with 

photographs of whales off Russia and 

reported a total of 21 matches. 

Therefore, a portion of the WNP 

population is assumed to migrate, at 

least in some years, to the eastern 

Pacific during the winter breeding 

season. However, it is extremely 

unlikely that a gray whale in close 

proximity to NAVMAG Indian Island 

construction activity would be one of 

the few WNP whales that have been 

documented in the eastern Pacific. The 

likelihood that a WNP whale would be 

present in the vicinity of the proposed 

project is insignificant and 

discountable, and WNP gray whales are 

omitted from further analysis. 

Eastern gray whales, however, are 

known to migrate along the U.S. West 

Coast on both their northward and 

southward migrations. As the majority 

of gray whales migrate past the Strait of 

Juan de Fuca in route to or from their 

feeding or breeding grounds, a few of 

them enter Washington inland waters to 

feed (Stout et al., 2001; Calambodkidis 

et al., 2015). Gray whales are observed 

in Washington inland waters, including 

Puget Sound in all months of the year 

(Calambokidis et al., 2010; Orca 

Network, 2023) with peak numbers from 

March through June (Calambokidis et 

al., 2010, 2015). Fewer than 20 gray 

whales are documented in the inland 

waters of Washington and British 

Columbia each year beginning in 


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January (Orca Network, 2011, as cited 

by Washington Department of Fish and 

Wildlife [WDFW], 2012). Most whales 

sighted are part of a small regularly 

occurring group of 6 to 10 gray whales 

that use mudflats in the Whidbey Island 

and the Camano Island area as a 

springtime feeding area (Calambokidis 

et al., 2010). Gray whales feed on 

benthic invertebrates, including dense 

aggregations of ghost shrimp and 

tubeworms (Weitkamp et al., 1992, 

Richardson, 1997). 

Gray whales that are not identified 

with the regularly occurring group in 

the Whidbey Island and Camano Island 

area are occasionally sighted in Puget 

Sound. These whales are not associated 

with feeding areas and are often 

emaciated (WDFW, 2012). Gray whales 

are expected to occur in the waters 

surrounding NAVMAG Indian Island. 

They are expected to occur primarily 

from March through June when in-water 

construction work will not occur. 

Therefore, some exposure to individual 

gray whales could occur over the 

duration of the project; however, project 

timing will help to minimize potential 

exposures. 

Minke Whale 

Minke whales from California to 

Washington appear to be behaviorally 

distinct from migratory whales further 

north (i.e., Alaska stock). Animals from 

the California, Oregon, and Washington 

stock, including Washington inland 

waters are considered ‘‘resident’’. Minke 

whales appear to establish home ranges 

in the inland waters of Washington 

(Dorsey, 1983; Dorsey et al., 1990). They 

are reported in the inland waters yearround, although the majority of the 

records are from March through 

November (Calambokidis & Baird, 

1994). Minke whales are sighted 

primarily in the San Juan Islands and 

Strait of Juan de Fuca but are relatively 

rare in Puget Sound south of Admiralty 

Inlet (Orca Network, 2023). In the Strait 

of Juan de Fuca, individuals move 

within and between specific feeding 

areas around submarine banks (Stern et 

al., 1990). Dorsey et al. (1990) noted 

minke whales feeding in locations of 

strong tidal currents. Hoelzel et al. 16 

(1989) reported that 80 percent of 

feeding observations in the San Juan 

Islands were over submarine slopes of 

moderate incline at a depth of about 20 

m to 100 m. Three feeding grounds have 

been identified in the Strait of Juan de 

Fuca and San Juan Islands area 

(Osborne et al., 1988; Hoelzel et al., 

1989; Dorsey et al., 1990; Stern et al., 

1990). There is year-to-year variation in 

the use of these feeding areas, and other 

feeding areas probably exist (Osborne et 

al., 1988; Dorsey et al., 1990). A review 

of Washington inland water sighting 

data from January 2005 through August 

2012 indicates that Minke whales 

typically occur as lone individuals or in 

small groups of two or three (Orca 

Network, 2023). 

No minke whales have been reported 

in Port Townsend Bay although they 

have been reported in the Strait of Juan 

de Fuca and north of Port Townsend 

and along the western side of Whidbey 

Island near Smith Island in October 

(Orca Network, 2023). 

Based on the information presented, 

the number of minke whales potentially 

present near NAVMAG Indian Island is 

expected to be very low in October and 

unlikely from November through 

February (Orca Network, 2023). 

Dall’s Porpoise 

Dall’s porpoise is one of the most 

common odontocete species in North 

Pacific waters (Jefferson, 1991; 2 Ferrero 

& Walker, 1999; Calambokidis & Barlow, 

2004; Williams & Thomas, 2007). Dall’s 

porpoise is found from northern Baja 

California, Mexico, north to the 

northern Bering Sea and south to 

southern Japan (Jefferson et al., 1993). 

However, the species is only common 

between 32° N lat. and 62° N lat. in the 

eastern North Pacific (Morejohn, 1979; 

Houck & Jefferson, 1999). Dall’s 

porpoise are found in outer continental 

shelf, slope, and oceanic waters, 

typically in temperatures less than 17 °C 

(Houck & Jefferson, 1999; Reeves et al., 

2002; Jefferson et al., 2015). 

Dall’s porpoises may occur in 

Washington inland waters year-round, 

but appear to be very rare (Evenson et 

al., 2016). Extensive aerial surveys 

conducted in Puget Sound and Hood 

Canal in all seasons from 2013–2015 

logged only one sighting of one 

individual (Jefferson et al., 2016). Only 

four Dall’s porpoise were detected in 

aerial surveys of the northern inland 

waters of Washington (Strait of Juan de 

Fuca, San Juan Islands, Strait of 

Georgia) during spring 2015 (Smultea et 

al., 2015). Additional sightings have 

been reported in the Strait of Juan de 

Fuca and Haro Strait between San Juan 

Island and Vancouver Island 

(Nysewander et al., 2005; Orca Network, 

2023). Tagging studies suggest Dall’s 

porpoises seasonally move between the 

Haro Strait area and the Strait of Juan de 

Fuca or farther west (Hanson et al., 

1998). 

Dall’s porpoise were detected in Puget 

Sound during aerial surveys in winter 

(1993–2008) and summer (1992–1999) 

(Nysewander et al., 2005; WDFW, 2008), 

with additional observations reported to 

Orca Network (2023). During the 

surveys, Dall’s porpoise were sighted in 

Puget Sound as far south as Carr Inlet 

in southern Puget Sound and as far 

north as Saratoga Passage, north of 

Naval Station (NAVSTA) Everett 

(Nysewander et al., 2005; WDFW, 2008). 

Recent extensive aerial surveys of Puget 

Sound and Hood Canal during 2013– 

2015 detected only one individual 

(Jefferson et al., 2016), but did not 

specify its location. The number of 

Dall’s porpoises potentially present near 

NAVMAG Indian Island is expected to 

be very low in any month. 

Harbor Porpoise 

In Washington inland waters, harbor 

porpoise are known to occur in the 

Strait of Juan de Fuca and the San Juan 

Islands area year-round (Calambokidis 

and Baird, 1994; Osmek et al., 1996; 

Carretta et al., 2012). Harbor porpoises 

were historically one of the most 

commonly observed marine mammals 

in Puget Sound (Scheffer and Slipp, 

1948); however, there was a significant 

decline in sightings beginning in the 

1940s (Everitt et al., 1979; Calambokidis 

et al., 1992). Only a few sightings were 

reported between the 1970s and 1980s 

(Calambokidis et al., 1992; Osmek et al., 

1996; Raum-Suryan and Harvey, 1998), 

and no harbor porpoise sightings were 

recorded during multiple ship and 

aerial surveys conducted in Puget 

Sound (including Hood Canal) in 1991 

and 1994 (Calambokidis et al., 1992; 

Osmek et al., 1996). 

Incidental sightings of marine 

mammals during aerial bird surveys 

conducted as part of the Puget Sound 

Ambient Monitoring Program (PSAMP) 

detected few harbor porpoises in Puget 

Sound between 1992 and 1999 

(Nysewander et al., 2005). However, 

these sightings may have been 

negatively biased due to the low 

elevation of the plane, which may have 

caused an avoidance behavior. Since 

1999, PSAMP data, stranding data, and 

aerial surveys conducted from 2013 to 

2016 documented increasing numbers of 

harbor porpoise in Puget Sound, 

indicating that the species is increasing 

in the area (Nysewander, 2008; WDFW, 

2008; Jeffries, 2013; Smultea et al., 

2017). 

Little information is available on 

harbor porpoise occurrence outside of 

Hood Canal and no site-specific 

information is available for NAVMAG 

Indian Island. No harbor porpoises have 

been reported in Port Townsend Bay 

although they have been reported just 

north of Port Townsend and along 

Marrowstone Island as they move south 

into Puget Sound (Orca Network, 2023). 

Based on the information presented, the 

number of harbor porpoises present near 


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NAVMAG Indian Island is expected to 

be very low in any month and even 

lower in winter months. 

California Sea Lion 

During the summer, California sea 

lions breed on islands from the Gulf of 

California to the Channel Islands and 

forage in the Southern California Bight. 

The primary rookeries are located on the 

California Channel Islands of San 

Miguel, San Nicolas, Santa Barbara, and 

San Clemente. In the nonbreeding 

season, adult and subadult males 

migrate northward along the coast to 

central and northern California, Oregon, 

Washington, and Vancouver Island, and 

return south in the spring (DeLong et al., 

2017; Weise and Harvey, 2008). 

Primarily male California sea lions 

migrate into northwest waters with most 

adult females with pups remaining in 

waters near their breeding rookeries off 

the coasts of California and Mexico 

(Melin et al., 2000; Lowry and 

Maravilla-Chavez, 2005; Kuhns and 

Costa., 2014; Lowry et al., 2017). 

California sea lions also enter bays, 

harbors, and river mouths and often 

haul out on artificial structures such as 

piers, jetties, offshore buoys, and oil 

platforms. 

Jeffries et al. (2000) and Jeffries (2012 

personal communication) identified 

dedicated, regular haulouts used by 

adult and sub-adult California sea lions 

in Washington inland waters (See 

Figure 4–1 in the Navy’s application). 

California sea lions are typically present 

most of the year except for mid-June 

through July in Washington inland 

waters, with peak abundance between 

October and May (NMFS, 1997; Jeffries 

et al., 2000). California sea lions would 

be expected to forage within the area, 

following local prey availability. 

Steller Sea Lion 

The eastern stock of Steller sea lions 

is found along the coasts of southeast 

Alaska to northern California where 

they occur at rookeries and numerous 

haulout locations along the coastline 

(Jeffries et al., 2000; Scordino, 2006). 

Male Steller sea lions often disperse 

widely outside of the breeding season 

from breeding rookeries in northern 

California (e.g., St. George Reef) and 

southern Oregon (e.g., Rogue Reef) 

(Scordino, 2006; Wright et al., 2010). 

Based on mark recapture sighting 

studies, males migrate back into these 

Oregon and California locations from 

winter feeding areas in Washington, 

British Columbia, and Alaska (Scordino, 

2006). 

In Washington, Steller sea lions use 

haulout sites primarily along the outer 

coast from the Columbia River to Cape 

Flattery, as well as along the Vancouver 

Island side of the Strait of Juan de Fuca 

(Jeffries et al., 2000). A major winter 

haulout is located in the Strait of Juan 

de Fuca at Race Rocks, British 

Columbia, Canada (Canadian side of the 

Strait of Juan de Fuca) (Edgell & 

Demarchi, 2012). Numbers vary 

seasonally in Washington with peak 

numbers present during the fall and 

winter months and a decline in the 

summer months that corresponds to the 

breeding season at coastal rookeries 

(approximately late May to early June) 

(Jeffries et al., 2000). In Puget Sound, 

Jeffries (2012 personal communication) 

identified five winter haulout sites used 

by adult and subadult (immature or prebreeding animals) Steller sea lions, 

ranging from immediately south of Port 

Townsend (near Admiralty Inlet) to 

Olympia in southern Puget Sound (see 

Figure 4–1 in the Navy’s application). 

Numbers of animals observed at these 

sites ranged from a few to less than 100 

(Jeffries, 2012 personal communication). 

In addition, Steller sea lions 

opportunistically haul out on various 

navigational buoys in Admiralty Inlet 

south through southern Puget Sound 

near Olympia (Jeffries, 2012 personal 

communication). One or two animals 

occur on these buoys. 

No haulouts are known in the 

immediate vicinity of NAVMAG Indian 

Island; therefore, no shore-based 

surveys have been conducted there and 

no opportunistic sightings have been 

reported. The nearest Steller sea lion 

haul-outs to NAVMAG Indian Island is 

located on the east side of Marrowstone 

Island, approximately 7 km away 

(Figure 4–1 in the Navy’s application). 

Monitoring during pile driving in 2015 

and 2016 did not observe any Steller sea 

lions hauled out on the Port Security 

Barrier or swimming through the area 

(Navy, 2014, 2016, 2021). Therefore, 

Steller sea lions are expected to be rare 

in the waters off NAVMAG Indian 

Island. 

Northern Elephant Seal 

The northern elephant seal occurs 

almost exclusively in the eastern and 

central North Pacific. Rookeries are 

located from central Baja California, 

Mexico, to northern California (Stewart 

& Huber, 1993). Adult elephant seals 

engage in two long migrations per year, 

one following the breeding season, and 

another following the annual molt 

(Stewart and DeLong, 1995; Robinson et 

al., 2012). Between the two foraging 

periods they return to land to molt with 

females returning earlier than males 

(March through April versus July 

through August). After the molt, adults 

then return to their northern feeding 

areas until the next winter breeding 

season. Breeding occurs from December 

to March (Stewart & Huber, 1993). 

Juvenile elephant seals typically leave 

the rookeries in April or May and head 

north, traveling an average of 900 to 

1,000 km. Most elephant seals return to 

their natal rookeries when they start 

breeding (Huber et al., 1991). Their 

foraging range extends thousands of 

miles offshore into the central North 

Pacific. Adults tend to stay offshore, but 

juveniles and subadults are often seen 

along the coasts of Oregon, Washington, 

and British Columbia (Condit & Le 

Boeuf, 1984; Stewart & Huber, 1993). 

In Washington inland waters, there 

are regular haulout sites in the Strait of 

Juan de Fuca at Smith and Minor 

Islands, Dungeness Spit, and Protection 

Island that are thought to be used yearround (Jeffries et al., 2000; Jeffries, 2012 

personal communication) (Figure 4–1 in 

the Navy’s application). Pupping has 

occurred at these sites, as well as Race 

Rocks on the British Columbia side of 

the Strait of Juan de Fuca (Jeffries, 2012 

personal communication). 

No haulouts occur in Puget Sound 

with the exception of individual 

elephant seals occasionally hauling out 

for 2 to 4 weeks to molt, usually during 

the spring and summer and typically on 

sandy beaches (Calambokidis & Baird, 

1994). These animals are usually 

yearlings or subadults and their haulout 

locations are unpredictable. Although 

regular haul-outs occur in the Strait of 

Juan de Fuca, the occurrence of 

elephant seals in Puget Sound is 

unpredictable and rare. 

Pacific Harbor Seal 

Harbor seals are a coastal species, 

rarely found more than 21 km from 

shore, and frequently occupy bays, 

estuaries, and inlets (Baird, 2001). 

Individual seals have been observed 

several kilometers upstream in coastal 

rivers (Baird, 2001). Ideal harbor seal 

habitat includes haul-out sites, shelter 

during the breeding periods, and 

sufficient food (Bj<rge, 2002). Harbor 

seals generally do not make extensive 

pelagic migrations (i.e., less than 50 km; 

Baird, 2001), Harbor seals have also 

displayed strong fidelity to haul-out 

sites. 

Harbor seals are the most common, 

widely distributed marine mammal 

found in Washington marine waters and 

are frequently observed in the nearshore 

marine environment. They occur yearround and breed in Washington. 

Numerous harbor seal haulouts occur in 

Washington inland waters (Figure 4–1 

in the Navy’s application). Haulouts 

include intertidal and subtidal rock 

outcrops, beaches, reefs, sandbars, log 


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booms, and floats. Numbers of 

individuals at haul-outs range from a 

few to between 100 and 500 individuals 

(Jeffries et al., 2000). Harbor seals are 

expected to occur year-round, the 

nearest documented haul-out to 

NAVMAG Indian Island is Rat Island at 

the north end of NAVMAG Indian 

Island approximately 2.4 km from the 

Ammunition Wharf. The haulout at Rat 

Island is estimated to have less than 100 

individuals (Jeffries, 2012 personal 

communication). 

Marine Mammal Hearing 

Hearing is the most important sensory 

modality for marine mammals 

underwater, and exposure to 

anthropogenic sound can have 

deleterious effects. To appropriately 

assess the potential effects of exposure 

to sound, it is necessary to understand 

the frequency ranges marine mammals 

are able to hear. Not all marine mammal 

species have equal hearing capabilities 

(e.g., Richardson et al., 1995; Wartzok 

and Ketten, 1999; Au and Hastings, 

2008). To reflect this, Southall et al. 

(2007, 2019) recommended that marine 

mammals be divided into hearing 

groups based on directly measured 

(behavioral or auditory evoked potential 

techniques) or estimated hearing ranges 

(behavioral response data, anatomical 

modeling, etc.). Note that no direct 

measurements of hearing ability have 

been successfully completed for 

mysticetes (i.e., low-frequency 

cetaceans). Subsequently, NMFS (2018) 

described generalized hearing ranges for 

these marine mammal hearing groups. 

Generalized hearing ranges were chosen 

based on the approximately 65 decibel 

(dB) threshold from the normalized 

composite audiograms, with the 

exception for lower limits for lowfrequency cetaceans where the lower 

bound was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in Table 3. 

TABLE 3—MARINE MAMMAL HEARING GROUPS

[NMFS, 2018] 

Hearing group Generalized hearing 

range * 

Low-frequency (LF) cetaceans (baleen whales) ....................................................................................................................... 7 Hz to 35 kHz. 

Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ............................................ 150 Hz to 160 kHz. 

High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, Cephalorhynchid, Lagenorhynchus cruciger & L. 

australis).

275 Hz to 160 kHz. 

Phocid pinnipeds (PW) (underwater) (true seals) ..................................................................................................................... 50 Hz to 86 kHz. 

Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) ................................................................................................ 60 Hz to 39 kHz. 

* 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 

(Hemila ̈ et al., 2006; Kastelein et al., 

2009; Reichmuth and Holt, 2013). 

For more detail concerning these 

groups and associated frequency ranges, 

please see NMFS (2018) for a review of 

available information. 

Potential Effects of Specified Activities 

on Marine Mammals and Their Habitat 

This section provides a discussion of 

the ways in which components of the 

specified activity may impact marine 

mammals and their habitat. The 

Estimated Take section later in this 

document includes a quantitative 

analysis of the number of individuals 

that are expected to be taken by this 

activity. The Negligible Impact Analysis 

and Determination section considers the 

content of this section, the Estimated 

Take section, and the Proposed 

Mitigation section, to draw conclusions 

regarding the likely impacts of these 

activities on the reproductive success or 

survivorship of individuals and whether 

those impacts are reasonably expected 

to, or reasonably likely to, adversely 

affect the species or stock through 

effects on annual rates of recruitment or 

survival. 

Acoustic effects on marine mammals 

during the specified activities can occur 

from impact pile driving and vibratory 

driving and removal. The effects of 

underwater noise from the Navy’s 

proposed activities have the potential to 

result in Level A or Level B harassment 

of marine mammals in the action areas. 

Description of Sound Sources 

The marine soundscape is comprised 

of both ambient and anthropogenic 

sounds. Ambient sound is defined as 

the all-encompassing sound in a given 

place and is usually a composite of 

sound from many sources both near and 

far (American National Standards 

Institute [ANSI], 1995). The sound level 

of an area is defined by the total 

acoustical energy being generated by 

known and unknown sources. These 

sources may include physical (e.g., 

waves, wind, precipitation, earthquakes, 

ice, atmospheric sound), biological (e.g., 

sounds produced by marine mammals, 

fish, and invertebrates), and 

anthropogenic sound (e.g., vessels, 

dredging, aircraft, construction). 

The sum of the various natural and 

anthropogenic sound sources at any 

given location and time—which 

comprise ‘‘ambient’’ or ‘‘background’’ 

sound—depends not only on the source 

levels (as determined by current 

weather conditions and levels of 

biological and shipping activity) but 

also on the ability of sound to propagate 

through the environment. In turn, sound 

propagation is dependent on the 

spatially and temporally varying 

properties of the water column and sea 

floor, and is frequency-dependent. As a 

result of the dependence on a large 

number of varying factors, ambient 

sound levels can be expected to vary 

widely over both coarse and fine spatial 

and temporal scales. Sound levels at a 

given frequency and location can vary 

by 10–20 decibels (dB) from day to day 

(Richardson et al., 1995). The result is 

that, depending on the source type and 

its intensity, sound from the specified 

activities may be a negligible addition to 

the local environment or could form a 

distinctive signal that may affect marine 

mammals. 

In-water construction activities 

associated with the projects would 

include impact and vibratory pile 

installation and vibratory removal. The 

sounds produced by these activities fall 

into one of two general sound types: 

impulsive and non-impulsive. 

Impulsive sounds (e.g., explosions, 


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sonic booms, impact pile driving) are 

typically transient, brief (less than 1 

second), broadband, and consist of high 

peak sound pressure with rapid rise 

time and rapid decay (ANSI, 1986; 

National Institute for Occupational 

Safety and Health [NIOSH], 1998; 

NMFS, 2018). Non-impulsive sounds 

(e.g., machinery operations such as 

drilling or dredging, vibratory pile 

driving, underwater chainsaws, and 

active sonar systems) can be broadband, 

narrowband or tonal, brief or prolonged 

(continuous or intermittent), and 

typically do not have the high peak 

sound pressure with raid rise/decay 

time that impulsive sounds do (ANSI 

1995; NIOSH 1998; NMFS 2018). The 

distinction between these two sound 

types is important because they have 

differing potential to cause physical 

effects, particularly with regard to 

hearing (e.g., Ward 1997 in Southall et 

al., 2007). 

Two types of hammers would be used 

on these projects, impact and vibratory. 

Impact hammers operate by repeatedly 

dropping and/or pushing a heavy piston 

onto a pile to drive the pile into the 

substrate. Sound generated by impact 

hammers is considered impulsive. 

Vibratory hammers install piles by 

vibrating them and allowing the weight 

of the hammer to push them into the 

sediment. Vibratory hammers produce 

non-impulsive, continuous sounds. 

Vibratory hammering generally 

produces sound pressure levels (SPLs) 

10 to 20 dB lower than impact pile 

driving of the same-sized pile (Oestman 

et al., 2009). Rise time is slower, 

reducing the probability and severity of 

injury, and sound energy is distributed 

over a greater amount of time (Nedwell 

and Edwards, 2002; Carlson et al., 

2005). 

The likely or possible impacts of the 

Navy’s proposed activities on marine 

mammals could be generated from both 

non-acoustic and acoustic stressors. 

Potential non-acoustic stressors include 

the physical presence of the equipment, 

vessels, and personnel; however, we 

expect that any animals that approach 

the project site(s) close enough to be 

harassed due to the presence of 

equipment or personnel would be 

within the Level B harassment zones 

from pile driving and would already be 

subject to harassment from the in-water 

activities. Therefore, any impacts to 

marine mammals are expected to 

primarily be acoustic in nature. 

Acoustic stressors are generated by 

heavy equipment operation during pile 

installation and removal (i.e., impact 

and vibratory pile driving and removal). 

Acoustic Impacts 

The introduction of anthropogenic 

noise into the aquatic environment from 

pile driving equipment is the primary 

means by which marine mammals may 

be harassed from the Navy’s specified 

activities. In general, animals exposed to 

natural or anthropogenic sound may 

experience physical and psychological 

effects, ranging in magnitude from none 

to severe (Southall et al., 2007). 

Generally, exposure to pile driving and 

removal and other construction noise 

has the potential to result in auditory 

threshold shifts and behavioral 

reactions (e.g., avoidance, temporary 

cessation of foraging and vocalizing, 

changes in dive behavior). Exposure to 

anthropogenic noise can also lead to 

non-observable physiological responses 

such as an increase in stress hormones. 

Additional noise in a marine mammal’s 

habitat can mask acoustic cues used by 

marine mammals to carry out daily 

functions such as communication and 

predator and prey detection. The effects 

of pile driving and demolition noise on 

marine mammals are dependent on 

several factors, including, but not 

limited to, sound type (e.g., impulsive 

vs. non-impulsive), the species, age and 

sex class (e.g., adult male vs. mother 

with calf), duration of exposure, the 

distance between the pile and the 

animal, received levels, behavior at time 

of exposure, and previous history with 

exposure (Wartzok et al., 2004; Southall 

et al., 2007). Here we discuss physical 

auditory effects (threshold shifts) 

followed by behavioral effects and 

potential impacts on habitat. No 

physiological effects other than 

permanent threshold shift (PTS) 

(discussed below) are anticipated or 

proposed to be authorized, and therefore 

are not discussed further. 

NMFS defines a noise-induced 

threshold shift (TS) as a change, usually 

an increase, in the threshold of 

audibility at a specified frequency or 

portion of an individual’s hearing range 

above a previously established reference 

level (NMFS, 2018). The amount of 

threshold shift is customarily expressed 

in dB. A TS can be permanent or 

temporary. As described in NMFS 

(2018), there are numerous factors to 

consider when examining the 

consequence of TS, including, but not 

limited to, the signal temporal pattern 

(e.g., impulsive or non-impulsive), 

likelihood an individual would be 

exposed for a long enough duration or 

to a high enough level to induce a TS, 

the magnitude of the TS, time to 

recovery (seconds to minutes or hours to 

days), the frequency range of the 

exposure (i.e., spectral content), the 

hearing and vocalization frequency 

range of the exposed species relative to 

the signal’s frequency spectrum (i.e., 

how animal uses sound within the 

frequency band of the signal; e.g., 

Kastelein et al., 2014), and the overlap 

between the animal and the source (e.g., 

spatial, temporal, and spectral). 

Permanent Threshold Shift (PTS)— 

NMFS defines PTS as a permanent, 

irreversible increase in the threshold of 

audibility at a specified frequency or 

portion of an individual’s hearing range 

above a previously established reference 

level (NMFS 2018). Available data from 

humans and other terrestrial mammals 

indicate that a 40 dB TS approximates 

PTS onset (see Ward et al., 1958, 1959; 

Ward, 1960; Kryter et al., 1966; Miller, 

1974; Ahroon et al., 1996; Henderson et 

al., 2008). PTS levels for marine 

mammals are estimates, because there 

are limited empirical data measuring 

PTS in marine mammals (e.g., Kastak et 

al., 2008), largely due to the fact that, for 

various ethical reasons, experiments 

involving anthropogenic noise exposure 

at levels inducing PTS are not typically 

pursued or authorized (NMFS, 2018). 

Temporary Threshold Shift (TTS)—A 

temporary, reversible increase in the 

threshold of audibility at a specified 

frequency or portion of an individual’s 

hearing range above a previously 

established reference level (NMFS, 

2018). Based on data from cetacean TTS 

measurements (see Southall et al., 

2007), a TTS of 6 dB is considered the 

minimum TS shift clearly larger than 

any day-to-day or session-to-session 

variation in a subject’s normal hearing 

ability (Schlundt et al., 2000; Finneran 

et al., 2000, 2002). As described in 

Finneran (2016), marine mammal 

studies have shown the amount of TTS 

increases with cumulative sound 

exposure level (SELcum) in an 

accelerating fashion: At low exposures 

with lower SELcum, the amount of TTS 

is typically small and the growth curves 

have shallow slopes. At exposures with 

higher SELcum, the growth curves 

become steeper and approach linear 

relationships with the noise SEL. 

Depending on the degree (elevation of 

threshold in dB), duration (i.e., recovery 

time), and frequency range of TTS, and 

the context in which it is experienced, 

TTS can have effects on marine 

mammals ranging from discountable to 

serious (similar to those discussed in 

auditory masking, below). For example, 

a marine mammal may be able to readily 

compensate for a brief, relatively small 

amount of TTS in a non-critical 

frequency range that takes place during 

a time when the animal is traveling 

through the open ocean, where ambient 

noise is lower and there are not as many 


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competing sounds present. 

Alternatively, a larger amount and 

longer duration of TTS sustained during 

time when communication is critical for 

successful mother/calf interactions 

could have more serious impacts. We 

note that reduced hearing sensitivity as 

a simple function of aging has been 

observed in marine mammals, as well as 

humans and other taxa (Southall et al., 

2007), so we can infer that strategies 

exist for coping with this condition to 

some degree, though likely not without 

cost. 

Currently, TTS data only exist for four 

species of cetaceans (bottlenose 

dolphin, beluga whale (Delphinapterus 

leucas), harbor porpoise, and Yangtze 

finless porpoise (Neophocoena 

asiaeorientalis)) and five species of 

pinnipeds exposed to a limited number 

of sound sources (i.e., mostly tones and 

octave-band noise) in laboratory settings 

(Finneran, 2015). TTS was not observed 

in trained spotted (Phoca largha) and 

ringed (Pusa hispida) seals exposed to 

impulsive noise at levels matching 

previous predictions of TTS onset 

(Reichmuth et al., 2016). In general, 

harbor seals and harbor porpoises have 

a lower TTS onset than other measured 

pinniped or cetacean species (Finneran, 

2015). The potential for TTS from 

impact pile driving exists. After 

exposure to playbacks of impact pile 

driving sounds (rate 2,760 strikes/hour) 

in captivity, mean TTS increased from 

0 dB after 15 minute exposure to 5 dB 

after 360 minute exposure; recovery 

occurred within 60 minutes (Kastelein 

et al., 2016). Additionally, the existing 

marine mammal TTS data come from a 

limited number of individuals within 

these species. No data are available on 

noise-induced hearing loss for 

mysticetes. For summaries of data on 

TTS in marine mammals or for further 

discussion of TTS onset thresholds, 

please see Southall et al. (2007), 

Finneran and Jenkins (2012), Finneran 

(2015), and Table 5 in NMFS (2018). 

The Navy proposes to use impact pile 

driving to install some piles for these 

projects. There would likely be pauses 

in activities producing the sound (e.g., 

impact pile driving) during each day. 

Given these pauses and the fact that 

many marine mammals are likely 

moving through the project areas and 

not remaining for extended periods of 

time, the potential for TS declines. 

Behavioral Harassment—Exposure to 

noise from pile driving and removal also 

has the potential to behaviorally disturb 

marine mammals. Available studies 

show wide variation in response to 

underwater sound; therefore, it is 

difficult to predict specifically how any 

given sound in a particular instance 

might affect marine mammals 

perceiving the signal. If a marine 

mammal does react briefly to an 

underwater sound by changing its 

behavior or moving a small distance, the 

impacts of the change are unlikely to be 

significant to the individual, let alone 

the stock or population. However, if a 

sound source displaces marine 

mammals from an important feeding or 

breeding area for a prolonged period, 

impacts on individuals and populations 

could be significant (e.g., Lusseau and 

Bejder, 2007; Weilgart, 2007; National 

Research Council [NRC], 2005). 

Disturbance may result in changing 

durations of surfacing and dives, 

number of blows per surfacing, or 

moving direction and/or speed; 

reduced/increased vocal activities; 

changing/cessation of certain behavioral 

activities (such as socializing or 

feeding); visible startle response or 

aggressive behavior (such as tail/fluke 

slapping or jaw clapping); or avoidance 

of areas where sound sources are 

located. Pinnipeds may increase their 

haulout time, possibly to avoid in-water 

disturbance (Thorson and Reyff, 2006). 

Behavioral responses to sound are 

highly variable and context-specific and 

any reactions depend on numerous 

intrinsic and extrinsic factors (e.g., 

species, state of maturity, experience, 

current activity, reproductive state, 

auditory sensitivity, time of day), as 

well as the interplay between factors 

(e.g., Richardson et al., 1995; Wartzok et 

al., 2004; Southall et al., 2007; Weilgart, 

2007; Archer et al., 2010). Behavioral 

reactions can vary not only among 

individuals but also within an 

individual, depending on previous 

experience with a sound source, 

context, and numerous other factors 

(Ellison et al., 2012), and can vary 

depending on characteristics associated 

with the sound source (e.g., whether it 

is moving or stationary, number of 

sources, distance from the source). In 

general, pinnipeds seem more tolerant 

of, or at least habituate more quickly to, 

potentially disturbing underwater sound 

than do cetaceans, and generally seem 

to be less responsive to exposure to 

industrial sound than most cetaceans. 

Please see Appendices B and C of 

Southall et al. (2007) for a review of 

studies involving marine mammal 

behavioral responses to sound. 

Disruption of feeding behavior can be 

difficult to correlate with anthropogenic 

sound exposure, so it is usually inferred 

by observed displacement from known 

foraging areas, the appearance of 

secondary indicators (e.g., bubble nets 

or sediment plumes), or changes in dive 

behavior. As for other types of 

behavioral response, the frequency, 

duration, and temporal pattern of signal 

presentation, as well as differences in 

species sensitivity, are likely 

contributing factors to differences in 

response in any given circumstance 

(e.g., Croll et al., 2001; Nowacek et al., 

2004; Madsen et al., 2006; Yazvenko et 

al., 2007). A determination of whether 

foraging disruptions incur fitness 

consequences would require 

information on or estimates of the 

energetic requirements of the affected 

individuals and the relationship 

between prey availability, foraging effort 

and success, and the life history stage of 

the animal. 

Stress Responses—An animal’s 

perception of a threat may be sufficient 

to trigger stress responses consisting of 

some combination of behavioral 

responses, autonomic nervous system 

responses, neuroendocrine responses, or 

immune responses (Moberg, 2000). In 

many cases, an animal’s first and 

sometimes most economical (in terms of 

energetic costs) response is behavioral 

avoidance of the potential stressor. 

Autonomic nervous system responses to 

stress typically involve changes in heart 

rate, blood pressure, and gastrointestinal 

activity. These responses have a 

relatively short duration and may or 

may not have a significant long-term 

effect on an animal’s fitness. 

Neuroendocrine stress responses often 

involve the hypothalamus-pituitaryadrenal system. Virtually all 

neuroendocrine functions that are 

affected by stress—including immune 

competence, reproduction, metabolism, 

and behavior—are regulated by pituitary 

hormones. Stress-induced changes in 

the secretion of pituitary hormones have 

been implicated in failed reproduction, 

altered metabolism, reduced immune 

competence, and behavioral disturbance 

(e.g., Moberg, 1987; Blecha 2000). 

Increases in the circulation of 

glucocorticoids are also equated with 

stress (Romano et al., 2004). 

The primary distinction between 

stress (which is adaptive and does not 

normally place an animal at risk) and 

‘‘distress’’ is the cost of the response. 

During a stress response, an animal uses 

glycogen stores that can be quickly 

replenished once the stress is alleviated. 

In such circumstances, the cost of the 

stress response would not pose serious 

fitness consequences. However, when 

an animal does not have sufficient 

energy reserves to satisfy the energetic 

costs of a stress response, energy 

resources must be diverted from other 

functions. This state of distress will last 

until the animal replenishes its 

energetic reserves sufficient to restore 

normal function. 


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Relationships between these 

physiological mechanisms, animal 

behavior, and the costs of stress 

responses are well-studied through 

controlled experiments and for both 

laboratory and free-ranging animals 

(e.g., Holberton et al., 1996; Jessop et al., 

2003; Krausman et al., 2004; Lankford et 

al., 2005). Stress responses due to 

exposure to anthropogenic sounds or 

other stressors and their effects on 

marine mammals have also been 

reviewed (Fair and Becker, 2000; 

Romano et al., 2002b) and, more rarely, 

studied in wild populations (e.g., 

Romano et al., 2002a). For example, 

Rolland et al. (2012) found that noise 

reduction from reduced ship traffic in 

the Bay of Fundy was associated with 

decreased stress in North Atlantic right 

whales. These and other studies lead to 

a reasonable expectation that some 

marine mammals will experience 

physiological stress responses upon 

exposure to acoustic stressors and that 

it is possible that some of these would 

be classified as ‘‘distress.’’ In addition, 

any animal experiencing TTS would 

likely also experience stress responses 

(NRC, 2003), however distress is an 

unlikely result of these projects based 

on observations of marine mammals 

during previous, similar projects in the 

area. 

Masking—Sound can disrupt behavior 

through masking, or interfering with, an 

animal’s ability to detect, recognize, or 

discriminate between acoustic signals of 

interest (e.g., those used for intraspecific 

communication and social interactions, 

prey detection, predator avoidance, 

navigation) (Richardson et al., 1995). 

Masking occurs when the receipt of a 

sound is interfered with by another 

coincident sound at similar frequencies 

and at similar or higher intensity, and 

may occur whether the sound is natural 

(e.g., snapping shrimp, wind, waves, 

precipitation) or anthropogenic (e.g., 

pile driving, shipping, sonar, seismic 

exploration) in origin. The ability of a 

noise source to mask biologically 

important sounds depends on the 

characteristics of both the noise source 

and the signal of interest (e.g., signal-tonoise ratio, temporal variability, 

direction), in relation to each other and 

to an animal’s hearing abilities (e.g., 

sensitivity, frequency range, critical 

ratios, frequency discrimination, 

directional discrimination, age or TTS 

hearing loss), and existing ambient 

noise and propagation conditions. 

Masking of natural sounds can result 

when human activities produce high 

levels of background sound at 

frequencies important to marine 

mammals. Conversely, if the 

background level of underwater sound 

is high (e.g., on a day with strong wind 

and high waves), an anthropogenic 

sound source would not be detectable as 

far away as would be possible under 

quieter conditions and would itself be 

masked. The Puget Sound area contains 

active commercial shipping, ferry 

operations, and commercial fishing as 

well as numerous recreational and other 

commercial vessels, and background 

sound levels in the area are already 

elevated. 

Airborne Acoustic Effects—Pinnipeds 

that occur near the project site could be 

exposed to airborne sounds associated 

with pile driving and removal that have 

the potential to cause behavioral 

harassment, depending on their distance 

from pile driving activities. Cetaceans 

are not expected to be exposed to 

airborne sounds that would result in 

harassment as defined under the 

MMPA. 

Airborne noise would primarily be an 

issue for pinnipeds that are swimming 

or hauled out near the project site 

within the range of noise levels elevated 

above the acoustic criteria. We 

recognize that pinnipeds in the water 

could be exposed to airborne sound that 

may result in behavioral harassment 

when looking with their heads above 

water. Most likely, airborne sound 

would cause behavioral responses 

similar to those discussed above in 

relation to underwater sound. For 

instance, anthropogenic sound could 

cause hauled out pinnipeds to exhibit 

changes in their normal behavior, such 

as reduction in vocalizations, or cause 

them to temporarily abandon the area 

and move further from the source. 

However, these animals would likely 

previously have been taken because of 

exposure to underwater sound above the 

behavioral harassment thresholds, 

which are generally larger than those 

associated with airborne sound. There 

are no haulouts in close proximity to the 

project site. Thus, the behavioral 

harassment of these animals is already 

accounted for in these estimates of 

potential take. Therefore, we do not 

believe that authorization of incidental 

take resulting from airborne sound for 

pinnipeds is warranted, and airborne 

sound is not discussed further here. 

Marine Mammal Habitat Effects 

The Navy’s proposed construction 

activities could have localized, 

temporary impacts on marine mammal 

habitat, including prey, by increasing 

in-water sound pressure levels and 

slightly decreasing water quality. 

Increased noise levels may affect 

acoustic habitat (see masking discussion 

above) and adversely affect marine 

mammal prey in the vicinity of the 

project areas (see discussion below). 

During impact and vibratory pile 

driving or removal, elevated levels of 

underwater noise would ensonify the 

project areas where both fishes and 

mammals occur and could affect 

foraging success. Additionally, marine 

mammals may avoid the area during 

construction, however, displacement 

due to noise is expected to be temporary 

and is not expected to result in longterm effects to the individuals or 

populations. Construction activities are 

of short duration and would likely have 

temporary impacts on marine mammal 

habitat through increases in underwater 

and airborne sound. 

A temporary and localized increase in 

turbidity near the seafloor would occur 

in the immediate area surrounding the 

area where piles are installed or 

removed. In general, turbidity 

associated with pile installation is 

localized to about a 25-ft (7.6-m) radius 

around the pile (Everitt et al., 1980). The 

sediments of the project site will settle 

out rapidly when disturbed. Cetaceans 

are not expected to be close enough to 

the pile driving areas to experience 

effects of turbidity, and any pinnipeds 

could avoid localized areas of turbidity. 

Local currents are anticipated to 

disburse any additional suspended 

sediments produced by project activities 

at moderate to rapid rates depending on 

tidal stage. Therefore, we expect the 

impact from increased turbidity levels 

to be discountable to marine mammals 

and do not discuss it further. 

In-Water Construction Effects on 

Potential Foraging Habitat—The area 

likely impacted by the project is 

relatively small compared to the 

available habitat in Port Townsend Bay 

and the larger Puget Sound. The area is 

highly influenced by anthropogenic 

activities. The total seafloor area 

affected by pile installation and removal 

is a small area compared to the vast 

foraging area available to marine 

mammals in the area. At best, the 

impact area provides marginal foraging 

habitat for marine mammals and fishes. 

Furthermore, pile driving and removal 

at the project site would not obstruct 

long-term movements or migration of 

marine mammals. 

Avoidance by potential prey (i.e., fish 

or, in the case of transient killer whales, 

other marine mammals) of the 

immediate area due to the temporary 

loss of this foraging habitat is also 

possible. The duration of fish and 

marine mammal avoidance of this area 

after pile driving stops is unknown, but 

a rapid return to normal recruitment, 

distribution, and behavior is 

anticipated. Any behavioral avoidance 


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by fish or marine mammals of the 

disturbed area would still leave 

significantly large areas of fish and 

marine mammal foraging habitat in the 

nearby vicinity. 

In-Water Construction Effects on 

Potential Prey—Sound may affect 

marine mammals through impacts on 

the abundance, behavior, or distribution 

of prey species (e.g., crustaceans, 

cephalopods, fish, zooplankton, other 

marine mammals). Marine mammal 

prey varies by species, season, and 

location. Here, we describe studies 

regarding the effects of noise on known 

marine mammal prey other than other 

marine mammals (which have been 

discussed earlier). 

Fish utilize the soundscape and 

components of sound in their 

environment to perform important 

functions such as foraging, predator 

avoidance, mating, and spawning (e.g., 

Zelick and Mann, 1999; Fay, 2009). 

Depending on their hearing anatomy 

and peripheral sensory structures, 

which vary among species, fishes hear 

sounds using pressure and particle 

motion sensitivity capabilities and 

detect the motion of surrounding water 

(Fay et al., 2008). The potential effects 

of noise on fishes depends on the 

overlapping frequency range, distance 

from the sound source, water depth of 

exposure, and species-specific hearing 

sensitivity, anatomy, and physiology. 

Key impacts to fishes may include 

behavioral responses, hearing damage, 

barotrauma (pressure-related injuries), 

and mortality. 

Fish react to sounds which are 

especially strong and/or intermittent 

low-frequency sounds, and behavioral 

responses such as flight or avoidance 

are the most likely effects. Short 

duration, sharp sounds can cause overt 

or subtle changes in fish behavior and 

local distribution. The reaction of fish to 

noise depends on the physiological state 

of the fish, past exposures, motivation 

(e.g., feeding, spawning, migration), and 

other environmental factors. Hastings 

and Popper (2005) identified several 

studies that suggest fish may relocate to 

avoid certain areas of sound energy. 

Additional studies have documented 

effects of pile driving on fish; several are 

based on studies in support of large, 

multiyear bridge construction projects 

(e.g., Scholik and Yan, 2001, 2002; 

Popper and Hastings, 2009). Several 

studies have demonstrated that impulse 

sounds might affect the distribution and 

behavior of some fishes, potentially 

impacting foraging opportunities or 

increasing energetic costs (e.g., Fewtrell 

and McCauley, 2012; Pearson et al., 

1992; Skalski et al., 1992). However, 

some studies have shown no or slight 

reaction to impulse sounds (e.g., Pena et 

al., 2013; Wardle et al., 2001; Jorgenson 

and Gyselman, 2009). 

SPLs of sufficient strength have been 

known to cause injury to fish and fish 

mortality. However, in most fish 

species, hair cells in the ear 

continuously regenerate and loss of 

auditory function likely is restored 

when damaged cells are replaced with 

new cells. Halvorsen et al. (2012a) 

showed that a TTS of 4–6 dB was 

recoverable within 24 hours for one 

species. Impacts would be most severe 

when the individual fish is close to the 

source and when the duration of 

exposure is long. Injury caused by 

barotrauma can range from slight to 

severe and can cause death, and is most 

likely for fish with swim bladders. 

Barotrauma injuries have been 

documented during controlled exposure 

to impact pile driving (Halvorsen et al., 

2012b; Casper et al., 2013). 

The most likely impact to fishes from 

pile driving and removal and 

construction activities at the project 

areas would be temporary behavioral 

avoidance of the area. The duration of 

fish avoidance of this area after pile 

driving stops is unknown, but a rapid 

return to normal recruitment, 

distribution, and behavior is 

anticipated. 

Construction activities, in the form of 

increased turbidity, have the potential 

to adversely affect forage fish in the 

project areas. Forage fish form a 

significant prey base for many marine 

mammal species that occur in the 

project areas. Increased turbidity is 

expected to occur in the immediate 

vicinity (on the order of 10 ft (3 m) or 

less) of construction activities. However, 

suspended sediments and particulates 

are expected to dissipate quickly within 

a single tidal cycle. Given the limited 

area affected and high tidal dilution 

rates any effects on forage fish are 

expected to be minor or negligible. 

Finally, exposure to turbid waters from 

construction activities is not expected to 

be different from the current exposure; 

fish and marine mammals in the project 

area are routinely exposed to substantial 

levels of suspended sediment from 

natural and anthropogenic sources. 

In summary, given the brief and 

intermittent duration (24 days between 

October 1 and January 15) of sound 

associated with individual pile driving 

events and the relatively small areas 

being affected, pile driving activities 

associated with the proposed actions are 

not likely to have a permanent, adverse 

effect on any fish habitat, or populations 

of fish species. Any behavioral 

avoidance by fish of the disturbed area 

would still leave significantly large 

areas of fish and marine mammal 

foraging habitat in the nearby vicinity. 

Thus, we conclude that impacts of the 

specified activities are not likely to have 

more than short-term adverse effects on 

any prey habitat or populations of prey 

species. Further, any impacts to marine 

mammal habitat are not expected to 

result in significant or long-term 

consequences for individual marine 

mammals, or to contribute to adverse 

impacts on their populations. 

Estimated Take 

This section provides an estimate of 

the number of incidental takes proposed 

for authorization through this proposed 

rule, which will inform both NMFS’ 

consideration of ‘‘small numbers,’’ and 

the negligible impact determinations. 

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 primarily be 

by Level B harassment, as use of the 

acoustic sources (i.e., vibratory and 

impact pile driving equipment) has the 

potential to result in disruption of 

behavioral patterns for individual 

marine mammals. There is also some 

potential for auditory injury (Level A 

harassment) to result, primarily for 

harbor seals (phocids) because these 

animals are known to occur in close 

proximity to the pile driving locations. 

Auditory injury is unlikely to occur for 

other hearing groups or species. The 

proposed mitigation and monitoring 

measures are expected to minimize the 

severity of the taking to the extent 

practicable. 

As described previously, no serious 

injury or mortality is anticipated or 

proposed to be authorized for this 

activity. Below, we describe how the 

proposed take numbers are estimated. 

For acoustic impacts, generally 

speaking, we estimate take by 

considering: (1) acoustic thresholds 

above which NMFS believes the best 

available science indicates marine 

mammals will be behaviorally harassed 

or incur some degree of permanent 

hearing impairment; (2) the area or 

volume of water that will be ensonified 

above these levels in a day; (3) the 


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density or occurrence of marine 

mammals within these ensonified areas; 

and, (4) the number of days of activities. 

We note that while these factors can 

contribute to a basic calculation to 

provide an initial prediction of potential 

takes, additional information that can 

qualitatively inform take estimates is 

also sometimes available (e.g., previous 

monitoring results or average group 

size). Below, we describe the factors 

considered here in more detail and 

present the proposed take estimates. 

Acoustic Thresholds 

NMFS recommends the use of 

acoustic thresholds that identify the 

received level of underwater sound 

above which exposed marine mammals 

would be reasonably expected to be 

behaviorally harassed (equated to Level 

B harassment) or to incur PTS of some 

degree (equated to Level A harassment). 

Level B Harassment—Though 

significantly driven by received level, 

the onset of behavioral disturbance from 

anthropogenic noise exposure is also 

informed to varying degrees by other 

factors related to the source or exposure 

context (e.g., frequency, predictability, 

duty cycle, duration of the exposure, 

signal-to-noise ratio, distance to the 

source), the environment (e.g., 

bathymetry, other noises in the area, 

predators in the area), and the receiving 

animals (hearing, motivation, 

experience, demography, life stage, 

depth) and can be difficult to predict 

(e.g., Southall et al., 2007, 2021; Ellison 

et al., 2012). Based on what the 

available science indicates and the 

practical need to use a threshold based 

on a metric that is both predictable and 

measurable for most activities, NMFS 

typically uses a generalized acoustic 

threshold based on received level to 

estimate the onset of behavioral 

harassment. NMFS generally predicts 

that marine mammals are likely to be 

behaviorally harassed in a manner 

considered to be Level B harassment 

when exposed to underwater 

anthropogenic noise above root-meansquared pressure received levels (RMS 

SPL) of 120 dB (referenced to 1 

micropascal (re 1 mPa)) for continuous 

(e.g., vibratory pile-driving, drilling) and 

above RMS SPL 160 dB re 1 mPa for nonexplosive impulsive (e.g., seismic 

airguns) or intermittent (e.g., scientific 

sonar) sources. 

The Navy’s proposed activity includes 

the use of continuous (vibratory 

hammer source type) and impulsive 

(impact hammer) sources, and therefore 

the RMS SPL thresholds of 120 and 160 

dB re 1 mPa are applicable. 

Level A Harassment—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 nonimpulsive). The Navy’s proposed 

activity includes the use of impulsive 

(impact hammer) and non-impulsive 

(vibratory hammer) sources. 

These thresholds are provided in the 

Table 4 below. The references, analysis, 

and methodology used in the 

development of the thresholds are 

described in NMFS’ 2018 Technical 

Guidance, which may be accessed at: 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-acoustic-technicalguidance. 

TABLE 4—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

Hearing group 

PTS onset acoustic thresholds * 

(received level) 

Impulsive Non-impulsive 

Low-Frequency (LF) Cetaceans ...................................... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ......................... Cell 2: LE,LF,24h: 199 dB. 

Mid-Frequency (MF) Cetaceans ...................................... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ........................ Cell 4: LE,MF,24h: 198 dB. 

High-Frequency (HF) Cetaceans ..................................... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ........................ Cell 6: LE,HF,24h: 173 dB. 

Phocid Pinnipeds (PW) (Underwater) ............................. Cell 7: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ....................... Cell 8: LE,PW,24h: 201 dB. 

Otariid Pinnipeds (OW) (Underwater) ............................. Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ....................... Cell 10: LE,OW,24h: 219 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 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. 

In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure 

is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being 

included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated 

with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF 

cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level 

thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for 

action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. 

Ensonified Area 

Here, we describe operational and 

environmental parameters of the activity 

that are used in estimating the area 

ensonified above the acoustic 

thresholds, including source levels and 

transmission loss coefficient. 

The sound field in the project area is 

the existing background noise plus 

additional construction noise from the 

proposed project. Marine mammals are 

expected to be affected by sound 

generated by the primary components of 

the project (i.e., impact and vibratory 

pile driving). 

Data from prior pile driving projects 

at the Naval Base Kitsap Bangor and 

Bremerton waterfronts were reviewed in 

the analysis. The representative sound 

pressure levels used in the analysis are 

presented in Table 5. 

For vibratory pile driving distances to 

the PTS thresholds, the transmission 

loss (TL) model described above 

incorporated the auditory weighting 

functions for each hearing group using 

a single frequency as described in the 

NMFS Spreadsheet (NMFS, 2018). For 

impact pile driving distances to the PTS 

thresholds for 36-inch steel pile and 24- 

inch concrete pile, the TL model 

described above incorporated frequency 

weighting adjustments by applying the 

auditory weighting function over the 

entire 1-second SEL spectral data sets 

from impact pile driving. If a source 

level for a particular pile size was not 

available, the next highest source level 

was used to produce a conservative 

estimate of areas above threshold 

values. 


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In order to calculate distances to the 

Level A harassment and Level B 

harassment thresholds for the methods 

and piles being used in this project, the 

Navy used acoustic monitoring data 

from various similar locations to 

develop source levels for the different 

pile types, sizes, and methods proposed 

for use (Table 5). 

TABLE 5—SOURCE LEVELS FOR PROPOSED REMOVAL AND INSTALLATION ACTIVITIES

Pile diameter 

(inches) 

RMS1

(dB re 1 μPa) 

Peak 1

(dB re 1 μPa) 

SEL 2

(dB re 1 μPa2

sec) 

Impact Installation ............................ Concrete .......................................... 24 174 189 167 

Steel Pipe 2 ...................................... 36 192 211 184 

Vibratory Removal ........................... Steel Fender .................................... 14 150 N/A N/A 

Vibratory Installation ........................ Steel Fender .................................... 14 150 N/A N/A 

Composite Fender ........................... 18.75 150 N/A N/A 

Steel pipe ........................................ 36 167 N/A N/A 

Source: Navy, 2015; Navy, 2017, 2018, NAVFAC SW, 2020; WDOT, 2017. 

Key: N/A = not applicable; RMS = root mean square; SEL = sound exposure level. 

1Sound pressure levels are presented for a distance of 10 m from the pile. RMS and Peak levels are relative to 1 μPa and cumulative SEL 

levels are relative to 1 μPa2 sec; and 2Values modeled for impact driving 36-inch steel piles will be reduced by 8 dB for noise exposure modeling to account for attenuation from a 

bubble curtain. 

A bubble curtain will be used to 

minimize the noise generated by impact 

driving of steel pipe piles. Note that 

impact pile driving of steel piles would 

only occur if it is necessary to install the 

36-inch steel piles and none are 

currently planned to be installed. If steel 

piles became necessary then a 

maximum of 2 piles would be installed 

within the 5-year effective period of the 

LOA. The bubble curtain is expected to 

attenuate impact pile driving sound 

levels an average of 8 dB based on past 

performance during similar Navy 

projects in Puget Sound (Navy, 2015); 

therefore, 8 dB was subtracted from 

values in Table 5 prior to modeling the 

behavioral and PTS thresholds for 

impact pile driving steel pipe piles. For 

the cumulative SEL PTS thresholds, 

auditory weighting functions were 

applied to the attenuated one-second 

SEL spectra for steel pipe piles. 

Level B Harassment Zones 

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 

appropriate assumption for the Navy’ 

proposed activities. The Level B 

harassment zones and areas for the 

Navy’s proposed activities are shown in 

Table 6. 

TABLE 6—CALCULATED RADIAL DISTANCE(S) TO UNDERWATER MARINE MAMMAL VIBRATORY PILE DRIVING NOISE

THRESHOLDS AND AREAS ENCOMPASSED WITHIN THRESHOLD DISTANCE

Type 

Behavioral disturbance—Level B harassment 

(120 dB RMS) 

Radial distance to 

threshold 

Area encompassed 

by threshold 

14-inch steel H fender pile (vibratory) ............................................................................................. 1,000 m ..................... 1.8 km. 

18.75-in composite fender pile (vibratory) ....................................................................................... 1,000 m ..................... 1.8 km. 

36-inch steel (vibratory) ................................................................................................................... 13.6 km ..................... 54 km. 

Level A Harassment Zones 

The ensonified area associated with 

Level A harassment is more technically 

challenging to predict due to the need 

to account for a duration component. 

Therefore, NMFS developed an optional 

User Spreadsheet tool to accompany the 

Technical Guidance that can be used to 

relatively simply predict an isopleth 

distance for use in conjunction with 

marine mammal density or occurrence 

to help predict potential takes. We note 

that because of some of the assumptions 

included in the methods underlying this 

optional tool, we anticipate that the 

resulting isopleth estimates are typically 

going to be overestimates of some 

degree, which may result in an 

overestimate of potential take by Level 

A harassment. However, this optional 

tool offers the best way to estimate 

isopleth distances when more 

sophisticated modeling methods are not 

available or practical. For stationary 

sources such as impact and vibratory 

driving, the optional User Spreadsheet 

tool predicts the distance at which, if a 

marine mammal remained at that 

distance for the duration of the activity, 

it would be expected to incur PTS. 

The isopleths generated by the User 

Spreadsheet used the same TL 

coefficient as the Level B harassment 

zone calculations (i.e., the practical 

spreading value of 15). Inputs used in 

the User Spreadsheet (e.g., number of 

piles per day, duration and/or strikes 

per pile) are presented in Table 7. The 

maximum RMS SPL/SEL SPL and 

resulting isopleths are reported below in 

Table 8 and Table 9. The maximum 


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RMS SPL value was used to calculate 

Level A harassment isopleths for 

vibratory pile driving while the single 

strike SEL SPL value was used to 

calculate Level A harassment isopleths 

for impact pile driving activities. Note 

that Peak PTS thresholds were smaller 

for all pile sizes and hearing groups 

compared to SEL SPL values. 

TABLE 7— PARAMETERS OF PILE DRIVING ACTIVITY USED IN USER SPREADSHEET

24-inch concrete 36-inch steel Fender pile 

Removal or 

installation 

of steel 

14-inch steel 

or 18.75-inch 

composites 

36-inch 

steel 

Type of installation/removal .............................................. Impact ................ Impact ................ Vibratory ........ Vibratory ........ Vibratory. 

Source Level ..................................................................... 167 SEL/189 PK 184 SEL/211 PK 144 RMS ........ 150 RMS ........ 192 RMS 

Weighting Factor Adjustment (kHz) .................................. 2 ........................ 2 ........................ 2.5 .................. 2.5 .................. 2.5. 

(a) Number of strikes/pile ................................................. 1,000 ................. 500 .................... ................... ...................

(a) Activity Duration (min) within 24-h period ................... ....................... ....................... 10 ................... 10 ................... 45. 

Propagation (xLogR) ........................................................ 15 ...................... 15 ...................... 15 ................... 15 ................... 15. 

Piles per day ..................................................................... 2 ........................ 1 ........................ 2 ..................... 2 ..................... 1. 

Distance of source level measurement (meters) ............. 10 ...................... 10 ...................... 10 ................... 10 ................... 10. 

TABLE 8—CALCULATED RADIAL DISTANCE(S) TO IMPACT PILE DRIVING NOISE THRESHOLDS FOR LEVEL A AND LEVEL B 

HARASSMENT AND ASSOCIATED AREAS 1

Level A harassment 

pinnipeds 

Level A harassment 

cetaceans 

Behavioral disturbance 

level B (160 dB RMS) 

Harbor 

seal 

Sea 

lion LF MF HF Radial distance to threshold 

Area 

encompassed 

by threshold 

24-inch concrete ................................................ 29 m ............ 2 m .............. 54 m ............ 2 m .............. 64 m ............ 86 m .................. 0.02 km2. 

36-inch steel ...................................................... 182 m .......... 13 m ............ 243 m .......... 8 m .............. 256 m .......... 398 m ................ 0.5 km2. 

1 Calculations based on SELCUM threshold criteria shown in Table 4 and source levels shown in Table 5. 

TABLE 9—CALCULATED RADIAL DISTANCE(S) TO VIBRATORY PILE DRIVING NOISE THRESHOLDS FOR LEVEL A AND LEVEL

B HARASSMENT AND ASSOCIATED AREAS 1

Type 

Level A harassment 

pinnipeds 

Level A harassment 

cetaceans 

Behavioral disturbance 

level B (120 dB RMS) 

Phocids Otariids LF MF HF Radial distance 

to threshold 

Area 

encompassed 

by threshold 

14-inch steel H fender pile (vibratory) ............... <1 m ............ <1 m ............ <1 m ............ <1 m ............ <1 m ............ 1,000 m ............. 1.8 km2. 

18.75-in composite fender pile (vibratory) ......... <1 m ............ <1 m ............ <1 m ............ <1 m ............ <1 m ............ 1,000 m ............. 1.8 km2. 

36-inch steel (vibratory) ..................................... 4 m .............. <1 m ............ 7 m .............. <1 m ............ 11 m ............ 13.6 km ............. 54 km2. 

1Vibratory pile driving would only occur if it is necessary to install 36 inch steel piles, none are currently planned to be installed. If steel piles became necessary 

then only up to eight would be installed within the 5 years of the LOA. 

Marine Mammal Occurrence and Take 

Calculation and Estimation 

In this section we provide information 

about the occurrence of marine 

mammals, including density or other 

relevant information that will inform 

the take calculations. We describe how 

the information provided above is 

brought together to produce a 

quantitative take estimate for each 

species. 

To quantitatively assess potential 

exposure of marine mammals to noise 

levels from pile driving over the NMFS 

threshold guidance, the following 

equation was first used to provide an 

estimate of potential exposures within 

estimated harassment zones: 

Exposure estimate = N × Level B 

harassment zone (km2) × maximum days 

of pile driving per year where N = 

density estimate (animals per km2) used 

for each species. 

Note that the area of the harassment 

zone is truncated by land masses 

surrounding the area (i.e., Whidbey 

Island, Port Townsend mainland, and 

Indian Island). Densities are shown in 

Table 10. 

In addition, local occurrence data 

from prior monitoring efforts, discussed 

in the next paragraph, was used as a 

supplement to estimate potential 

occurrence of harbor seals within the 

Level A harassment zones. This method 

is conservative in providing estimates of 

potential exposure above the total given 

using the aforementioned equation that 

we equate here with Level A 

harassment. 

For harbor seals, which were the 

primary species found within 1,000 m 

of the Ammunition Wharf during pile 

driving monitoring from 2014–2016 and 

2020 (Navy, 2014, 2016, 2021), a daily 

rate of harbor seal occurrence was 

determined for vibratory installation of 

fender piles for the Level A harassment 

zones. Only harbor seals were observed 

during pile driving monitoring (Navy, 

2016, 2020) and weekly marine mammal 

surveys (2022) at NAVMAG Indian 

Island Ammunition Wharf with the 

exception of a single harbor porpoise 

and a single California sea lion. The 

site-specific data was used to estimate 

take only for harbor seals at a rate of 0.5 

seals per day from concrete impact 

driving and eight seals per day from 

steel impact driving, based on the 

different estimated zone sizes. 


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During the site-specific monitoring 

efforts discussed above, only harbor 

seals were observed during pile driving 

monitoring (Navy, 2016, 2020) and 

weekly marine mammal surveys (2022) 

at NAVMAG Indian Island Ammunition 

Wharf, with the exception of a single 

harbor porpoise and a single California 

sea lion. For species other than harbor 

seal—for which use of the available 

density information and the equation 

given above provide low calculated take 

estimates (described in species-specific 

sections below)—it was assumed 

between one (i.e., gray whale, minke 

whale) and three animals would be 

taken over the duration of the proposed 

rule (by Level B harassment only). For 

California sea lions, Steller sea lions, 

and northern elephant seals it was 

assumed that there would be 1 take per 

year from concrete/fender pile 

installation (by Level B harassment 

only). It was also assumed that there 

would be 1 additional take per year by 

Level B harassment during steel pile 

installation for the northern elephant 

seal. In contrast to pinniped species, 

Dall’s porpoises and harbor porpoises 

often occur in pods of two to four 

porpoises. Therefore, it was assumed 

that there would be up to three takes per 

year by concrete/fender pile installation 

for each species with three additional 

takes per year only for Dall’s porpoises 

per year due to steel pile installation. 

All takes are assumed to be by Level B 

harassment only, based on the assumed 

rarity of occurrence and the Navy’s 

proposal to implement shutdown 

procedures for all cetaceans at the 

estimated Level B harassment distance. 

The density estimates given in Table 

10 come from the Pacific NMSDD, 

NAVFAC Pacific Technical Report 

(Navy, 2020) and Smultea et al. (2017) 

(for harbor porpoise). The seasonal 

density value for each species during 

the in-water work window at each site 

was used in the marine mammal take 

assessment calculation. 

Note that The largest Level B 

harassment zone will be generated 

during vibratory driving. The Level B 

harassment zone for an impact hammer 

will be encompassed by the larger Level 

B harassment zone from the vibratory 

driver. Impact pile driving was assumed 

to be one pile per day but actual daily 

production rates may be higher with a 

maximum of two per day, resulting in 

fewer in-water pile driving days. It was 

assumed that 22 days of concrete pile 

installation would occur. This is a 

conservative estimate based on past 

work at NAVMAG. There would be up 

to 22 concrete piles (24-in) driven over 

the maximum of 22 days per year over 

5 years with up to two 24-inch concrete 

piles driven per day (1-2 piles installed 

per day; mean of 1.8 piles installed per 

day) depending on accessing the wharf 

deck, weather, harbor seal delays, or 

equipment issues. Note that this 

conservative estimate of pile driving 

days is used solely to assess the number 

of days during which pile driving could 

occur if production was delayed due to 

equipment failure, safety, etc. In a real 

construction situation, pile driving 

production rates would be maximized 

when possible. 

TABLE 10—MARINE MAMMAL SPECIES DENSITIES IN PROJECT AREA

Species Region location Density (October–February) * 

animals km2

Gray whale ........................... North Puget Sound ............ Zero (within 1,000 m) 1 0.00048 (Fall and Winter).2

Minke Whale ........................ Puget Sound ...................... Zero (within 1,000 m) 1 0.00045 (Annual).2

Harbor porpoise ................... North Puget Sound ............ 1.16 (Annual).2 3

Dall’s porpoise ..................... Puget Sound ...................... 0.00045 (Annual) 2. 

Steller sea lion ..................... Puget Sound ...................... Zero (within 1,000 m) 2 0.0478 (Fall and Winter).1

California sea lion ................ Puget Sound ...................... Zero (within 1,000 m) 1 0.2211 (Fall) 2 0.1100 (Winter).2

Northern elephant seal ........ Puget Sound ...................... Zero (within 1,000 m) 1 0.0000 (Annual).2

Harbor Seal .......................... North Puget Sound ............ 14-18.75 inch Fender Pile Driving: 1

Within 10 m = 0.0 seals/day (Level A zone). 

Within 1,000 m = 15.54 seals per day (Level B harassment zone). 

............................................. 24 inch Concrete Impact Pile Driving: 1

Within 29 m = 0.5 seals/day (Level A harassment zone). 

Combine with the larger fender pile vibratory Level B harassment zone. 

............................................. 36 inch Steel Impact Pile Driving: 1

Within 182 m = 8 seals/day (Level A harassment zone). 

Combine with the larger vibratory zone for Level B harassment. 

............................................. 36 inch Steel Vibratory Pile Driving: 

Within 10 m = 0.0 seals/day (Level A zone). 

Within 13.6 km (54 km2) = 2.83 seals/km2. 

* 13.6 km with an area of 54 km2 (a large part of the area was truncated by land masses) was used for 36-inch steel pile vibratory installation. 

Sources: 1 Navy, 2014, 2016; 2021; 2 NMSDD (Navy, 2020), 3Smultea et al. (2017). 

It is important to note that the 

successful implementation of mitigation 

methods (i.e., visual monitoring and the 

use of shutdown zones) is expected to 

result in no Level A harassment 

exposure to all marine mammals except 

harbor seals because the injury zones 

and behavioral zones will be monitored 

during pile driving. Harbor seal Level A 

harassment exposure will be limited to 

the smallest extent practicable. The 

exposure assessment estimates the 

numbers of individuals potentially 

exposed to the effects of pile driving 

noise exceeding NMFS established 

thresholds. Results from acoustic impact 

exposure assessments should be 

regarded as conservative overestimates 

that are strongly influenced by limited 

marine mammal data, the assumption 

that marine mammals will be present 

during pile driving, and the 

assumptions that the maximum number 

of piles will be extracted or installed. 

Gray Whale 

Most gray whales in Puget Sound 

utilize the feeding areas in northern 

Puget Sound around Whidbey Island 

and in Port Susan in March through 

June with a few individual sightings 

occurring year-round that are not always 

associated with feeding areas. Therefore, 

gray whales are included in the 

proposed take authorization. The 

majority of in-water work will occur 

during the fall and winter when gray 

whales are less likely to be present in 

Puget Sound. Therefore, based on a low 

probability of occurrence within the 

vibratory harassment zones, the Navy 

used the formula described above to 


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calculate estimated exposures. The 

formula estimated zero takes per year; 

however, due to the uncertainty of gray 

whale movements and the large area of 

exposure during vibratory driving of 36- 

inch steel piles, the Navy has requested 

and NMFS proposes to authorize take by 

Level B harassment at a rate of one 

animal per year. 

To protect gray whales from noise 

impacts, the Navy will implement a 

shutdown if protected species obervers 

(PSOs) see gray whales approaching or 

within any harassment zone. A PSO will 

be stationed at locations from which the 

injury zone and behavioral zone for 

impact and vibratory pile driving are 

visible and will implement shutdown if 

a whale approaches or enters either 

zone. With the implementation of 

monitoring, even if a whale enters an 

injury zone, shutdown would occur 

before cumulative exposure to noise 

levels that would result in PTS could 

occur. Because pile driving will be shut 

down if whales are in the injury zone, 

no Level A harassment take has been 

requested or is being proposed for 

authorization by NMFS. In summary, 

the Navy has requested, and NMFS 

proposes, to authorize one take of gray 

whale by Level B harassment each year 

for the duration of the 5-year LOA. 

Minke Whale 

Minke whales in Washington inland 

waters typically feed in the areas around 

the San Juan Islands and along banks in 

the Strait of Juan de Fuca. Minke whales 

are infrequent visitors to Puget Sound, 

especially east of Admiralty Inlet. When 

present, minke whales are usually seen 

singly or in pairs. Therefore, based on 

a low probability of occurrence within 

the vibratory harassment zones, the 

Navy used the same equation discussed 

above to calculate estimated exposures. 

The formula estimated zero takes 

annually for the duration of the LOA. 

However, due to the uncertainty of 

minke whale movements and the large 

area of exposure during vibratory 

driving of 36-inch steel piles, the Navy 

requested takes for the exposure of one 

minke whale per year for the duration 

of the 5-year LOA. 

To protect minke whales from noise 

impacts, the Navy will implement a 

shutdown if PSOs see minke whales 

approaching or within any harassment 

zone. A PSO will be stationed at 

locations from which the injury zone 

and behavioral zone for impact and 

vibratory pile driving are visible and 

will implement shutdown if a whale 

approaches or enters either zone. PSOs 

may be stationed on boats to observe a 

greater portion of the shutdown zone 

than is visible from land-based 

locations. With the implementation of 

monitoring, even if a whale enters an 

injury zone, shutdown would occur 

before cumulative exposure to noise 

levels that would result in PTS could 

occur. Because pile driving will be shut 

down if whales are in the injury zone, 

no Level A harassment take has been 

requested or is being proposed for 

authorization by NMFS. In summary, 

although minke whales are rare in the 

project area, the Navy has requested and 

NMFS proposes to authorize one take of 

minke whale by Level B harassment 

each year for the duration of the 5-year 

LOA. 

Dall’s Porpoise 

Dall’s porpoises are most abundant in 

the Strait of Juan de Fuca and Haro 

Strait in the San Juan Islands area, but 

may be present in Puget Sound yearround. Group size is usually two to four, 

although larger groups are often sighted 

(Anderson et al., 2018). In Puget Sound, 

the Navy has estimated that Dall’s 

porpoise density is 0.045 animals/km2, 

although they have not been reported 

near NAVMAG Indian Island in recent 

years and their occurrence in both the 

Salish Sea and Puget Sound appears to 

be declining (Smultea et al., 2015; 

Evenson et al., 2016; Jefferson et al., 

2016). The Navy used the formula 

described previously to calculate 

potential exposures. The formula 

estimated zero takes. Due to the 

uncertainty of Dall’s porpoise 

movements and the large estimated 

harassment area during vibratory 

driving, the Navy assumed, and NMFS 

concurred, that there would be three 

takes from work on the fender piles and 

three takes from work on the steel piles 

each year, by Level B harassment only. 

To protect Dall’s porpoises from noise 

impacts, the Navy will implement a 

shutdown if PSOs see porpoises 

approaching or inside of any harassment 

zone. A PSO will be stationed at 

locations from which the harassment 

zones for impact and vibratory pile 

driving are visible and will implement 

shutdown if a porpoise approaches or 

enters any zone. With the 

implementation of monitoring, even if a 

Dall’s porpoise enters an injury zone, 

shutdown would occur before 

cumulative exposure to noise levels that 

would result in PTS could occur. 

Because pile driving will be shut down 

if porpoises are in the injury zone, no 

Level A harassment take has been 

requested or is proposed for 

authorization. In summary, although 

Dall’s porpoises are rare in the project 

area, the Navy has requested, and NMFS 

proposes, to authorize take of 30 Dall’s 

porpoises (6 per year) by Level B 

harassment over the 5-year LOA period. 

Harbor Porpoise 

Harbor porpoises may be present in 

all major regions of Puget Sound 

throughout the year. Group sizes 

ranging from 1 to 150 individuals were 

reported in aerial surveys conducted 

from summer 2013 to spring 2016, but 

mean group size was 1.7 animals 

(Smultea et al., 2017). The estimated 

harbor porpoise density in inland 

waters is provided in Table 10. The 

estimated exposure equation described 

previously was employed resulting in 

125 takes per year from steel vibratory 

driving. Take from concrete/fender 

vibratory driving was calculated to be 

0.05 exposures per year. However, the 

Navy requested authorization of three 

takes per year resulting from this 

activity as a precaution. Note that 

harbor porpoises were not observed 

during pile driving monitoring at 

NAVMAG Indian Island ammunition 

wharf from 2014 to 2016 (Navy, 2014; 

Navy 2016), but one was observed in 

2020 within 200 m of the Wharf (Navy, 

2021). 

The Navy will implement a shutdown 

if porpoises are seen by PSOs entering 

or within any harassment zone in order 

to protect harbor porpoises from noise 

impacts. A monitor will be stationed at 

locations from which the injury and 

behavioral harassment zones for impact 

and vibratory pile driving are visible 

and will implement shutdown if a 

porpoise approaches or enters any 

harassment zone. With the 

implementation of monitoring, even if a 

harbor porpoise enters an injury zone, 

shutdown would occur before 

cumulative exposure to noise levels that 

would result in PTS could occur. 

Because pile driving will be shut down 

if porpoises are in the injury zone, no 

Level A harassment take has been 

requested or is proposed for 

authorization. In summary, the Navy 

has requested, and NMFS proposes, to 

authorize take of up to 640 harbor 

porpoises by Level B harassment (3 per 

year for work on concrete/fender piles 

and 125 per year from for work on steel 

piles) for the duration of the 5-year 

LOA. 

California Sea Lion 

California sea lions occur in Puget 

Sound from approximately August to 

June. This species occasionally hauls 

out on the port security barriers at 

NAVMAG Indian Island. These haulouts 

are adjacent to, in, or near the Level B 

harassment zones, so exposure may 

occur if animals move through Level B 

harassment zones during impact or 


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vibratory pile driving activities. 

California sea lions were not observed 

during previous pile driving monitoring 

at NAVMAG Indian Island ammunition 

wharf in 2014 to 2016 (Navy, 2014; 

Navy 2016), but one was observed 

during 2020 (Navy, 2021). Although 

calculated take was zero, reflecting their 

unlikely occurrence, Level B harassment 

exposures for the concrete and fender 

pile driving were estimated as one sea 

lion per year. Exposure estimates for 

vibratory driving of steel piles utilized 

the estimated exposure equation, 

resulting in estimated take of 17.88 sea 

lions per year, which was rounded up 

to 18 sea lion takes per year. Because a 

Level A harassment injury zone can be 

effectively monitored and a shutdown 

zone will be implemented, no take by 

Level A harassment is anticipated or 

proposed for authorization. Based on 

the aforementioned considerations, 

NMFS proposes to authorize take of 95 

California sea lions (1 per year by work 

on concrete/fender piles and 18 per year 

from work on steel piles), by Level B 

harassment only, for the duration of the 

5-year LOA. 

Steller Sea Lion 

Steller sea lions occur seasonally in 

Puget Sound primarily from September 

through May. Take may occur if these 

animals move through Level B 

harassment zones during impact or 

vibratory pile driving. Although their 

occurrence is unlikely, the Navy 

assumed that there would be one Level 

B harassment take from concrete and 

fender pile driving per year. Level B 

harassment exposure estimates for steel 

piles utilized the exposure estimate 

equation described previously using 

densities from Table 10 resulting in an 

estimated take of 5.16 animals per your 

rounded to 5 takes. Steller sea lions 

were not observed during previous 

monitoring at NAVMAG Indian Island 

ammunition wharf in 2014 to 2016 

(Navy, 2014, 2016, 2021). Because the 

Level A harassment injury zone is small 

under all driving scenarios, it can be 

effectively monitored. A shutdown will 

be implemented if animals approach the 

injury zone and no exposure to Level A 

harassment noise levels is anticipated at 

any location. In summary, the Navy has 

requested, and NMFS proposes, to 

authorize take of up to 30 Steller sea 

lions (five for work on concrete/fender 

piles over 5 years and 25 for work on 

steel piles over 5 years) by Level B 

harassment for the duration of the 5- 

year LOA. 

Northern Elephant Seal 

Northern elephant seals are 

considered rare visitors to Puget Sound. 

No regular elephant seal haul outs occur 

in Puget Sound, although individual 

elephant seals have been detected 

hauling out for 2 to 4 weeks to molt, 

usually during the spring and summer. 

Haul out locations are unpredictable, 

but only one record is known for a Navy 

installation. The Navy reports a density 

of 0.0 in Puget Sound (Navy, 2020). 

However, because there are occasional 

sightings in Puget Sound, the Navy 

assumed that there would be one 

exposure from concrete/fender driving 

and one exposure from steel driving 

during each year of the LOA. Because 

elephant seals are rare in the project 

area and monitoring and shutdown 

measures will be implemented, no Level 

A harassment exposure is anticipated. 

In summary, the Navy has requested, 

and NMFS is proposing, to authorize 

take of up to 10 northern elephant seals 

(2 per year) by Level B harassment for 

the duration of the 5-year LOA. 

Pacific Harbor Seal 

Pacific harbor seals are expected to 

occur year-round at NAVMAG Indian 

Island. This species hauls out regularly 

at Rat Island adjacent to the 

northeastern end of NAVMAG Indian 

Island year-round with a dip in numbers 

in winter months. Harbor seals are most 

likely to be exposed to Level A 

harassment noise when they swim 

through the area near the Ammunition 

Wharf during impact pile driving (182 

m for steel impact driving and 29 m for 

concrete impact driving). Pile driving 

will shutdown whenever a seal is 

detected by monitors nearing or within 

the injury zone, but harbor seals can 

dive for up to 15 minutes and may not 

be detected until they have been within 

the injury zone for a sufficient period of 

time to incur PTS. For most pile driving 

activities, exposure of harbor seals to 

pile driving noise will be limited to 

Level B harassment. Level B harassment 

exposure estimates for vibratory driving 

were determined using the formula of 

Level B harassment zone area × density 

× days of vibratory pile driving. The 

Navy has calculated take by Level B 

harassment of 1,710 harbor seals during 

vibratory installation of fender piles 

(342 per year), and 1,530 harbor seals 

during vibratory pile driving of steel 

piles (306 per year). Therefore, the Navy 

has requested, and NMFS proposes, to 

authorize take of up to 3,240 Pacific 

harbor seals by Level B harassment for 

the duration of the LOA. In addition, the 

Navy has requested and NMFS is 

proposing to authorize up to 135 harbor 

seal takes (27 per year) by Level A 

harassment during the 5-year LOA. This 

is based on the daily average of sitespecific observations from several 

seasons of pile driving monitoring at the 

Ammunition Wharf and weekly surveys 

conducted at NAVMAG Indian Island 

provided above. Observations of seals 

within 29 m would be calculated to a 

mean of seals per day within the Level 

A harassment zone. (Using the density 

value would underestimate the number 

of seals in that small zone.) This 

assumption results in 11 Level A 

harassment takes per year (0.5 seals/day 

for 22 days) for impact driving of 

concrete piles (55 takes for 5 years) and 

16 takes per year (8 seals/day for 2 days) 

for impact driving of steel piles (80 

takes over 5 years). 

The annual and total number of takes 

requested by the Navy and proposed for 

authorization by NMFS are shown in 

Table 11 and Table 12. 

TABLE 11—PROPOSED ANNUAL TAKE BY LEVEL A AND LEVEL B HARASSMENT AND PERCENTAGE OF STOCK ABUNDANCE

FOR AUTHORIZED SPECIES/STOCKS

Species 

Exposures 

24 Inch concrete piles and/or 

14-in/18.75-inch fender piles 

(up to 22 piles/year) 

36 Inch steel piles 

(up to 2 piles/year) 

Total 

annual Population 

Percent of 

stock/distinct 

population 

segmant (DPS) 

per year 

Level B 

impact or 

vibratory 

Level A Impact 

Level B 

vibratory 

and impact 

Level A 

impact 

Gray Whale ......................................................... 0 0 1 0 1 26,960 <0.01 

Minke Whale ....................................................... 0 0 1 0 1 915 <0.01 

Dall’s Porpoise .................................................... 3 0 3 0 3 16,498 <0.01 

Harbor Porpoise .................................................. 3 0 125 0 128 11,233 1.11 

California Sea Lion .............................................. 1 0 18 0 19 257,606 <0.01 

Steller Sea Lion ................................................... 1 0 5 0 6 43,201 <0.01 


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TABLE 11—PROPOSED ANNUAL TAKE BY LEVEL A AND LEVEL B HARASSMENT AND PERCENTAGE OF STOCK ABUNDANCE

FOR AUTHORIZED SPECIES/STOCKS—Continued 

Species 

Exposures 

24 Inch concrete piles and/or 

14-in/18.75-inch fender piles 

(up to 22 piles/year) 

36 Inch steel piles 

(up to 2 piles/year) 

Total 

annual Population 

Percent of 

stock/distinct 

population 

segmant (DPS) 

per year 

Level B 

impact or 

vibratory 

Level A Impact 

Level B 

vibratory 

and impact 

Level A 

impact 

Northern Elephant Seal ....................................... 1 0 1 0 2 187,386 <0.01 

Pacific Harbor Seal ............................................. 342 11 306 16 675 11,036 6.11 

TABLE 12—TOTAL 5-YEAR PROPOSED TAKES

[Level A Harassment and Level B Harassment] 

Species Stock Level A 

harassment 

Level B 

harassment Total 5-year 

Gray Whale ..................................................... Eastern North Pacific ..................................... ........................ 5 5 

Minke Whale ................................................... California/Oregon/Washington ....................... ........................ 5 5 

Dall’s Porpoise ................................................ California/Oregon/Washington ....................... ........................ 30 30 

Harbor Porpoise .............................................. Washington Inland Waters ............................. ........................ 640 640 

California Sea Lion ......................................... United States .................................................. ........................ 95 95 

Steller Sea Lion .............................................. Eastern United States .................................... ........................ 30 30 

Northern Elephant Seal .................................. California Breeding ......................................... ........................ 10 10 

Pacific Harbor Seal ......................................... Washington Northern Inland Waters .............. 135 3,240 3,375 

Proposed Mitigation 

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, NMFS considers two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat. This considers 

the nature of the potential adverse 

impact being mitigated (likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (probability of 

accomplishing the mitigating result if 

implemented as planned), the 

likelihood of effective implementation 

(probability implemented as planned), 

and; 

(2) The practicability of the measures 

for applicant implementation, which 

may consider such things as cost, 

impact on operations. 

In order to limit impacts to marine 

mammals, vibratory installation will be 

used by the Navy to the extent 

practicable to drive steel piles to 

minimize high sound pressure levels 

associated with impact pile driving. 

Jetting will also be used to the extent 

possible to install concrete piles in 

order to minimize higher sound 

pressure levels associated with impact 

pile driving. Note that a draft 

monitoring plan will be submitted in 

the spring at least 90 days prior to the 

start of the in-water work period 

(October) during the first year of the 

project (2024). The final monitoring 

plan will be prepared and submitted to 

NMFS within 30 days following receipt 

of comments on the draft plan from 

NMFS. 

The Navy will ensure that 

construction supervisors and crews, the 

monitoring team, and relevant Navy 

staff are trained and prior to the start of 

construction activity subject to this rule, 

so that responsibilities, communication 

procedures, monitoring protocols, and 

operational procedures are clearly 

understood. New personnel joining 

during the project will be trained prior 

to commencing work. 

Shutdown Zones 

Before the commencement of in-water 

construction activities, the Navy would 

establish shutdown zones for all impact 

and pile driving activities. 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 will vary 

based on the activity type and marine 

mammal hearing group but will include 

all areas where the underwater sound 

pressure levels are anticipated to equal 

or exceed the Level A harassment 

(injury) criteria for marine mammals. 

The shutdown zone will always be a 

minimum of 10 m to prevent injury 

from physical interaction of marine 

mammals with construction equipment. 

The Level A harassment zones are based 

on the maximum calculated radius for 

pinnipeds and cetaceans, specifically 

harbor porpoises, during installation of 

36-inch steel piles and 24-inch concrete 

piles with impact techniques, and the 

Level B harassment zone for impact and 

vibratory pile installation. 

Injury to harbor seals from noise due 

to impact and vibratory pile driving and 

physical interaction with construction 

equipment will be minimized to the 

extent practicable by implementing a 

shutdown if the animals are observed to 

be swimming towards the injury zone. 

For steel pile impact driving, to the 


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extent possible, PSOs would initiate 

shutdown when harbor seals enter the 

injury zone; however, because of the 

size of the zone and the inherent 

difficulty in monitoring harbor seals, a 

highly mobile species, it may not be 

practical, which is why Level A 

harassment take is proposed for 

authorization. 

The Navy would establish shutdown 

zones for all marine mammals for which 

take has not been authorized or for 

which incidental take has been 

authorized but the authorized number of 

takes has been met. These zones are 

equivalent to the Level B harassment 

zones for each activity. If such animals 

are sighted within the vicinity of the 

project areas and are approaching the 

Level B harassment zone, the Navy 

would shut down the pile driving 

equipment to avoid possible take of 

these species. 

Pile driving activities will cease if any 

cetaceans authorized for take are seen 

approaching or entering any harassment 

zone. Work will be halted and delayed 

until either the animal has voluntarily 

left and been visually confirmed beyond 

the injury zone or visual portion of the 

Level B harassment zone or 15 minutes 

have passed without re-detection of the 

animal. Additionally, if a shutdown 

zone is obscured by fog or poor lighting 

conditions, pile driving will not be 

initiated until the entire shutdown zone 

is visible. 

If a pinniped approaches or enters a 

shutdown zone during pile impact or 

vibratory driving, work will be halted 

and delayed until either the animal has 

voluntarily left and been visually 

confirmed beyond the shutdown zone or 

15 minutes have passed without redetection of the animal. If a pinniped is 

observed in the Level B harassment 

zone, but not approaching or entering 

the shutdown zone, the work will be 

allowed to proceed without cessation of 

pile driving. Marine mammal behavior 

will be monitored and documented. 

TABLE 13—SHUTDOWN AND HARASSMENT ZONES

Pile size and type 

Shutdown zone (m) Level B 

harassment 

zone 

(m) Cetaceans Harbor seal Sea lion 

24-inch Concrete Impact ................................................................................. 90 30 10 90 

36-inch Steel Impact ........................................................................................ 400 200 20 400 

36-inch Steel Vibratory .................................................................................... 13,600 10 10 13,600 

Fender Vibratory .............................................................................................. 1,000 10 10 1,000

At minimum, the shutdown zone for 

all hearing groups and all activities 

would be 10 m. For in-water heavy 

machinery work other than pile driving 

(e.g., standard barges, etc.), if a marine 

mammal comes within 10 m, operations 

would cease and vessels would reduce 

speed to the minimum level required to 

maintain steerage and safe working 

conditions. This type of work could 

include, for example, the movement of 

the barge to the pile location or 

positioning of the pile on the substrate 

via a crane. 

Pre-Activity Monitoring 

Prior to the start of daily in-water 

construction activity, or whenever a 

break in pile driving of 30 minutes or 

longer occurs, PSOs would observe the 

shutdown and Level B harassment 

zones for a period of 30 minutes. The 

shutdown zone would be considered 

cleared when a marine mammal has not 

been observed within the zone for that 

30-minute period. If a marine mammal 

is observed within the shutdown zones 

listed in Table 13, pile driving activity 

would be delayed or halted. If pile 

driving is delayed or halted due to the 

presence of a marine mammal, the 

activity would not commence or resume 

until either the animal has voluntarily 

exited and been visually confirmed 

beyond the shutdown zones or 15 

minutes have passed without redetection of the animal. If work ceases 

for more than 30 minutes, the preactivity monitoring of the shutdown 

zones would commence. A 

determination that the shutdown zone is 

clear must be made during a period of 

good visibility (i.e., the entire shutdown 

zone and surrounding waters must be 

visible to the naked eye). 

Monitoring will take place from 30 

minutes prior to initiation through 30 

minutes post-completion of pile driving. 

Prior to the start of pile driving, the 

shutdown zone will be monitored for 30 

minutes to ensure that the shutdown 

zone is clear of marine mammals. Pile 

driving will only commence once PSOs 

have declared the shutdown zone clear 

of marine mammals. 

Soft Start 

Soft-start procedures are used to 

provide additional protection to marine 

mammals by providing warning and/or 

giving marine mammals a chance to 

leave the area prior to the hammer 

operating at full capacity. For impact 

pile driving, contractors would be 

required to provide an initial set of three 

strikes from the hammer at reduced 

energy, followed by a 30-second waiting 

period, then two subsequent reducedenergy strike sets. Soft start would be 

implemented at the start of each day’s 

impact pile driving and at any time 

following cessation of impact pile 

driving for a period of 30 minutes or 

longer. 

Bubble Curtain 

Should the use of 36-inch steel piles 

be necessary, a bubble curtain will be 

used for all impact driving of steel piles 

to attenuate noise. Because of the 

relatively low underwater noise levels 

associated with impact driving of 

concrete piles, bubble curtains are not 

proposed for impact installation of 

concrete piles. 

A bubble curtain would be employed 

during impact installation or proofing of 

steel pile where water depths are greater 

than 0.67 m. A noise attenuation device 

would not be required during vibratory 

pile driving. If a bubble curtain or 

similar measure is used, it would 

distribute air bubbles around 100 

percent of the piling perimeter for the 

full depth of the water column. A 

bubble curtain is usually a ring or series 

of stacked rings that are placed around 

a pile along the pile’s entire length 

under water. The rings are made of 

tubing which has small puncture holes 

through which compressed air is 

pumped. As the compressed air bubbles 

flow from the tubing, they create an air 

barrier that impedes the sound 

produced during pile driving. Any other 

attenuation measure would be required 

to provide 100 percent coverage in the 

water column for the full depth of the 

pile. The lowest bubble ring would be 

in contact with the mudline for the full 

circumference of the ring. The weights 

attached to the bottom ring would 

ensure 100 percent mudline contact. No 


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parts of the ring or other objects would 

prevent full mudline contact. 

Based on our evaluation of the 

applicant’s proposed measures, NMFS 

has preliminarily determined that the 

proposed mitigation measures provide 

the means of effecting the least 

practicable adverse impact on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance. 

Proposed Monitoring and Reporting 

In order to issue an LOA for an 

activity, section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of such taking. 

The MMPA implementing regulations at 

50 CFR 216.104(a)(13) indicate that 

requests for authorizations must include 

the suggested means of accomplishing 

the necessary monitoring and reporting 

that will result in increased knowledge 

of the species and of the level of taking 

or impacts on populations of marine 

mammals that are expected to be 

present while conducting the activities. 

Effective reporting is critical both to 

compliance as well as ensuring that the 

most value is obtained from the required 

monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density); 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

activity; or (4) biological or behavioral 

context of exposure (e.g., age, calving or 

feeding areas); 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors; 

• How anticipated responses to 

stressors impact either: (1) long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks; 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or other important 

physical components of marine 

mammal habitat); and, 

• Mitigation and monitoring 

effectiveness. 

The Navy will submit a Marine 

Mammal Monitoring Plan to NMFS for 

approval at least 90 days in advance of 

the start of the first year of construction. 

Visual Monitoring 

• Monitoring must be conducted 

during pile driving activities by 

qualified, NMFS-approved PSOs, in 

accordance with the following 

conditions: PSOs must be independent 

of the activity contractor (for example, 

employed by a subcontractor) and have 

no other assigned tasks during 

monitoring periods. 

• At least one PSO must have prior 

experience performing the duties of a 

PSO during construction activity 

pursuant to a NMFS-issued incidental 

take authorization. 

• Other PSOs may substitute other 

relevant experience, education (degree 

in biological science or related field), or 

training for prior experience performing 

the duties of a PSO during construction 

activity pursuant to a NMFS-issued 

incidental take authorization. 

• Where a team of three or more PSOs 

is required, a lead PSO or monitoring 

coordinator must be designated. The 

lead PSO must have prior experience 

performing the duties of a PSO during 

construction activity pursuant to a 

NMFS-issued incidental take 

authorization. 

• PSOs must be approved by NMFS 

prior to beginning any activity subject to 

this proposed rule. 

All PSOs shall be trained in marine 

mammal identification and behaviors, 

and satisfy the following criteria: 

• Visual acuity in both eyes 

(correction is permissible) sufficient to 

discern moving targets at the water’s 

surface with ability to estimate target 

size and distance. Use of binoculars or 

spotting scope may be necessary to 

correctly identify the target. 

• Advanced education in biological 

science, wildlife management, 

mammalogy or related field (Bachelor’s 

degree or higher is preferred). 

• Experience and ability to conduct 

field observations and collect data 

according to assigned protocols (this 

may include academic experience). 

• Experience or training in the field 

identification of marine mammals 

(cetaceans and pinnipeds). 

• Sufficient training, orientation or 

experience with vessel operation and 

pile driving operations to provide for 

personal safety during observations. 

• Writing skills sufficient to prepare a 

report of observations. Reports should 

include such information as the 

number, type, and location of marine 

mammals observed; the behavior of 

marine mammals in the area of potential 

sound effects during construction; dates 

and times when observations and inwater construction activities were 

conducted; dates and times when inwater construction activities were 

suspended because of marine mammals, 

etc. 

• Ability to communicate orally, by 

radio or in person, with project 

personnel to provide real time 

information on marine mammals 

observed in the area and necessary 

actions, as needed. 

During pile driving activities, the 

Navy will assign PSOs to monitor the 

identified harassment zones. The 

number and placement of PSOs will 

vary depending upon the pile size, 

location, and number of piles being 

installed or removed. In order to 

effectively monitor the shutdown and 

Level B harassment zones, PSOs will be 

positioned at the best practicable 

vantage points, taking into 

consideration security, safety, and space 

limitations. The PSOs will be stationed 

on the pier, vessel, on shore, or on the 

pile driving barge in a location that will 

provide adequate visual coverage for the 

identified harassment zones. During pile 

driving, at least one PSO will be 

stationed on a vessel if practicable. 

Monitoring would be conducted 30 

minutes before, during, and 30 minutes 

after all in water construction activities. 

In addition, PSOs would record all 

incidents of marine mammal 

occurrence, regardless of distance from 

activity, and would document any 

behavioral reactions in concert with 

distance from piles being driven or 

removed. 

Reporting 

The Navy must submit a draft 

monitoring report to NMFS within 90 

calendar days of the completion of each 

construction year. A draft 

comprehensive 5-year summary report 

must also be submitted to NMFS within 

90 days of the end of the project. The 

reports must detail the monitoring 

protocol and summarize the data 

recorded during monitoring. Final 

annual reports and the final 

comprehensive report must be prepared 

and submitted within 30 days following 

resolution of any NMFS comments on 

the draft report. If no comments are 

received from NMFS within 30 days of 

receipt of the draft report, the report 

must be considered final. If comments 

are received, a final report addressing 

NMFS comments must be submitted 

within 30 days after receipt of 


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comments. The marine mammal report 

would include an overall description of 

work completed, a narrative regarding 

marine mammal sightings, and 

associated PSO data sheets. Specifically, 

the report would include: 

• Dates and times (begin and end) of 

all marine mammal monitoring; 

• Construction activities occurring 

during each daily observation period, 

including: (a) How many and what type 

of piles were driven or removed and the 

method (i.e., impact or vibratory); and 

(b) the total duration of time for each 

pile (vibratory driving) number of 

strikes for each pile (impact driving); 

• PSO locations during marine 

mammal monitoring; and 

• 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. 

In addition, for each observation of a 

marine mammal, the marine mammal 

report would include the following 

information: 

• Name of PSO who sighted the 

animal(s) and PSO location and activity 

at time of sighting; 

• Time of sighting; 

• Identification of the animal(s) (e.g., 

genus/species, lowest possible 

taxonomic level, or unidentified), PSO 

confidence in identification, and the 

composition of the group if there is a 

mix of species; 

• Distance and location of each 

observed marine mammal relative to the 

pile being driven for each sighting; 

• Estimated number of animals (min/ 

max/best estimate); 

• Estimated number of animals by 

cohort (adults, juveniles, neonates, 

group composition, etc.); 

• Description of any marine mammal 

behavioral observations (e.g., observed 

behaviors such as feeding or traveling), 

including an assessment of behavioral 

responses thought to have resulted from 

the activity (e.g., no response or changes 

in behavioral state such as ceasing 

feeding, changing direction, flushing, or 

breaching); 

• Number of marine mammals 

detected within the harassment zones, 

by species; and 

• Detailed information about 

implementation of any mitigation (e.g., 

shutdowns and delays), a description of 

specified actions that ensued, and 

resulting changes in behavior of the 

animal(s), if any. 

If no comments are received from 

NMFS within 30 days, the draft reports 

would constitute the final reports. If 

comments are received, a final report 

addressing NMFS’ comments would be 

required to be submitted within 30 days 

after receipt of comments. All PSO 

datasheets and/or raw sighting data 

would be submitted with the draft 

marine mammal report. 

Reporting of Injured or Dead Marine 

Mammals 

In the event that personnel involved 

in the construction activities discover 

an injured or dead marine mammal, the 

Navy must report the incident to NMFS 

Office of Protected Resources (OPR) 

(PR.ITP.MonitoringReports@noaa.gov), 

NMFS (301–427–8401) and to the NMFS 

Northwest Regional Stranding 

Coordinator as soon as feasible. If the 

death or injury was clearly caused by 

the specified activity, the Navy must 

immediately cease the specified 

activities until NMFS OPR 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 this rule. 

The Navy will not resume their 

activities until notified by NMFS. The 

report must include the following 

information: 

1. Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

2. Species identification (if known) or 

description of the animal(s) involved; 

3. Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

4. Observed behaviors of the 

animal(s), if alive; 

5. If available, photographs or video 

footage of the animal(s); and 

6. 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., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be taken 

through harassment, NMFS considers 

other factors, such as the likely nature 

of any impacts or responses (e.g., 

intensity, duration), the context of any 

impacts or responses (e.g., critical 

reproductive time or location, foraging 

impacts affecting energetics), as well as 

effects on habitat, and the likely 

effectiveness of the mitigation. We also 

assess the number, intensity, and 

context of estimated takes by evaluating 

this information relative to population 

status. Consistent with the 1989 

preamble for NMFS’ implementing 

regulations (54 FR 40338, September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the baseline (e.g., as 

reflected in the regulatory status of the 

species, population size and growth rate 

where known, ongoing sources of 

human-caused mortality, or ambient 

noise levels). 

To avoid repetition, the discussion of 

our analysis applies to the species listed 

in Table 12, given that many of the 

anticipated effects of this project on 

different marine mammal stocks are 

expected to be relatively similar in 

nature. Where there are meaningful 

differences among species, stocks, or 

groups of species, anticipated responses 

of individual animals to activities, and/ 

or impacts of expected take on the 

population (due to differences in 

population status, or impacts on 

habitat), the outliers are described 

independently in the analysis below. 

Pile driving activities associated with 

the project, as outlined previously, have 

the potential to disturb or displace 

marine mammals. Specifically, the 

specified activities may result in take, in 

the form of Level A and Level B 

harassment from underwater sounds 

generated by pile driving. Potential 

takes could occur if marine mammals 

are present in zones ensonified above 

the thresholds for Level A and Level B 

harassment, identified above, while 

activities are underway. 

No serious injury or mortality would 

be expected even in the absence of the 

proposed mitigation measures. During 

all impact driving, implementation of 

soft-start procedures and monitoring of 

established shutdown zones will be 

required, significantly reducing the 

possibility of injury. Given sufficient 

notice through use of soft-start (for 

impact driving), marine mammals are 

expected to move away from an 

irritating sound source before it 

becomes potentially injurious. In 

addition, PSOs will be stationed within 

the project area whenever pile driving 

activities are underway. Depending on 

the activity, the Navy will employ landbased PSOs to ensure all monitoring and 

shutdown zones are properly observed. 


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For monitoring of larger harassment 

zones, the Navy would employ vesselbased PSOs if practicable. Some harbor 

seals could be exposed to Level A 

harassment levels of noise when they 

swim through the area near the 

Ammunition Wharf during impact pile 

driving. Pile driving will shut down 

whenever a seal is detected by PSOs 

nearing or within the injury zone, but 

harbor seals can dive for up to 15 

minutes and may not be detected. Any 

animals that experience PTS would 

likely only receive slight PTS, i.e., 

minor degradation of hearing 

capabilities within regions of hearing 

that align most completely with the 

frequency range of the energy produced 

by pile driving (i.e., the low-frequency 

region below 2 kHz), not severe hearing 

impairment or impairment in the range 

of greatest hearing sensitivity. If hearing 

impairment does occur, it is most likely 

that the affected animal would lose a 

few dBs in its hearing sensitivity, 

which, in most cases, is not likely to 

meaningfully affect its ability to forage 

and communicate with conspecifics. As 

described above, we expect that, given 

sufficient notice through use of softstart, marine mammals would be likely 

to move away from a sound source that 

represents an aversive stimulus, 

especially when the sound source is at 

levels that would be expected to result 

in PTS. For most pile driving activities, 

exposure of harbor seals to pile driving 

noise will be minimized to short-term 

behavioral harassment (Level B 

harassment). 

Exposures to elevated sound levels 

produced during pile driving activities 

may cause behavioral disturbance of 

some individuals, but the behavioral 

disturbances are expected to be mild 

and temporary. However, as described 

previously, the mitigation and 

monitoring measures are expected to 

further reduce the likelihood of injury 

as well as reduce behavioral 

disturbances. 

Effects on individuals that are taken 

by Level B harassment, as enumerated 

in the Estimated Take section, on the 

basis of reports in the literature as well 

as monitoring from other similar 

activities, will likely be limited to 

reactions such as increased swimming 

speeds, increased surfacing time, or 

decreased foraging (if such activity were 

occurring) (e.g., Thorson and Reyff, 

2006). Most likely, individual animals 

will simply move away from the sound 

source and be temporarily displaced 

from the areas of pile driving, although 

even this reaction has been observed 

primarily only in association with 

impact pile driving. The pile driving 

activities analyzed here are similar to, or 

less impactful than, numerous other 

construction activities conducted along 

both Atlantic and Pacific coasts, which 

have taken place with no known longterm adverse consequences from 

behavioral harassment. These reactions 

and behavioral changes are expected to 

subside quickly when the exposures 

cease. Level B harassment will be 

minimized through use of mitigation 

measures described herein, and, if 

sound produced by project activities is 

sufficiently disturbing, animals are 

likely to simply avoid the area while the 

activity is occurring, particularly as the 

project is located on a waterfront with 

vessel traffic from both Navy and nonNavy activities. 

The project is also not expected to 

have significant adverse effects on any 

marine mammal habitat. The Navy’s 

proposed pile driving activities and 

associated impacts will occur within a 

limited portion of the confluence of the 

Puget Sound-Port Townsend Bay area. 

The project activities will not modify 

existing marine mammal habitat since 

the project will occur within the same 

footprint as existing marine 

infrastructure. Impacts to the immediate 

substrate during installation and 

removal of piles are anticipated, but 

these would be limited to minor, 

temporary suspension of sediments, 

which could impact water quality and 

visibility for a short amount of time, but 

which would not be expected to have 

any effects on individual marine 

mammals. The nearshore and intertidal 

habitat where the project will occur is 

an area of consistent vessel traffic from 

Navy and non-Navy vessels, and some 

local individuals would likely be 

somewhat habituated to the level of 

activity in the area, further reducing the 

likelihood of more severe impacts. The 

closest pinniped haulout, Rat Island, is 

used by harbor seals and is 2.4 km from 

the Ammunition Wharf. However, for 

the reasons described immediately 

above (including the nature of expected 

responses and the duration of the 

project), impacts to reproduction or 

survival of individuals are not 

anticipated, and are not expected to 

have effects on the species or stock. 

There are no other biologically 

important areas for marine mammals 

near the project area. 

Impacts to marine mammal prey 

species are expected to be minor and 

temporary. Overall, the area impacted 

by the project is very small compared to 

the available habitat in Port Townsend 

Bay and larger Puget Sound. The most 

likely impact to prey will be temporary 

behavioral avoidance of the immediate 

area. During pile driving activities, it is 

expected that some fish and marine 

mammals would temporarily leave the 

area of disturbance, thus impacting 

marine mammals’ foraging 

opportunities in a limited portion of the 

foraging range; but, because of the short 

duration of the activities and the 

relatively small area of the habitat that 

may be affected, the impacts to marine 

mammal habitat are not expected to 

cause significant or long-term negative 

consequences. 

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: 

• No mortality is anticipated or 

authorized; 

• No Level A harassment is 

anticipated or authorized with the 

exception of limited take of harbor seals; 

• Anticipated incidents of Level B 

harassment consist of, at worst, 

temporary modifications in behavior; 

• The required mitigation measures 

(i.e., shutdown zones) are expected to be 

effective in reducing the effects of the 

specified activity; 

• Minimal impacts to marine 

mammal habitat/prey are expected; and 

• There are no known biologically 

important areas in the vicinity of the 

project, with the exception of one 

harbor seal haulout (Rat Island). 

However, as described above, exposure 

to the work conducted in the vicinity of 

the haulout is not expected to impact 

the reproduction or survival of any 

individual seals. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

proposed monitoring and mitigation 

measures, NMFS preliminarily finds 

that the total marine mammal take from 

the proposed activity will have a 

negligible impact on all affected marine 

mammal species or stocks. 

Small Numbers 

As noted previously, only 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 


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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. 

Take of eight marine mammal stocks 

proposed for authorization will 

comprise no more than 6.11 percent of 

a single stock abundance (Pacific harbor 

seal) as shown in Table 11. The number 

of animals proposed for authorization to 

be taken from these stocks would be 

considered small relative to the relevant 

stock’s abundances even if each 

estimated take occurred to a new 

individual, which is an unlikely 

scenario. Based on the analysis 

contained herein of the proposed 

activity (including the mitigation and 

monitoring measures) and the 

anticipated take of marine mammals, 

NMFS preliminarily 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. 

Adaptive Management 

The regulations governing the take of 

marine mammals incidental to Navy 

construction activities would contain an 

adaptive management component. The 

reporting requirements associated with 

this rule are designed to provide NMFS 

with monitoring data from completed 

projects to allow consideration of 

whether any changes are appropriate. 

The use of adaptive management allows 

NMFS to consider new information 

from different sources to determine 

(with input from the Navy regarding 

practicability) on an annual or biennial 

basis if mitigation or monitoring 

measures should be modified (including 

additions or deletions). Mitigation 

measures could be modified if new data 

suggests that such modifications would 

have a reasonable likelihood of reducing 

adverse effects to marine mammals and 

if the measures are practicable. 

The following are some of the 

possible sources of applicable data to be 

considered through the adaptive 

management process: (1) Results from 

monitoring reports, as required by 

MMPA authorizations; (2) results from 

general marine mammal and sound 

research; and (3) any information which 

reveals that marine mammals may have 

been taken in a manner, extent, or 

number not authorized by these 

regulations or LOAs issues pursuant to 

these regulations. 

Endangered Species Act 

Section 7(a)(2) of the ESA of 1973 (16 

U.S.C. 1531 et seq.) requires that each 

Federal agency insure that any action it 

authorizes, funds, or carries out is not 

likely to jeopardize the continued 

existence of any endangered or 

threatened species or result in the 

destruction or adverse modification of 

designated critical habitat. To ensure 

ESA compliance for the issuance of 

proposed rules, NMFS consults 

internally whenever we propose to 

authorize take for endangered or 

threatened species, in this case with the 

NMFS West Coast Regional Office. 

No incidental take of ESA-listed 

species is proposed for authorization or 

expected to result from this activity. 

Therefore, NMFS has determined that 

formal consultation under section 7 of 

the ESA is not required for this action. 

Request for Information 

NMFS requests interested persons to 

submit comments, information, and 

suggestions concerning the Navy request 

and the proposed regulations (see 

ADDRESSES). All comments will be 

reviewed and evaluated as we prepare a 

final rule and make final determinations 

on whether to issue the requested 

authorization. This proposed rule and 

referenced documents provide all 

environmental information relating to 

our proposed action for public review. 

Classification 

The Office of Management and Budget 

has determined that this proposed rule 

is not significant for purposes of 

Executive Order 12866. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA), the 

Chief Counsel for Regulation of the 

Department of Commerce has certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration that this 

proposed rule, if adopted, would not 

have a significant economic impact on 

a substantial number of small entities. 

The Navy is the sole entity that would 

be subject to the requirements in these 

proposed regulations, and the Navy is 

not a small governmental jurisdiction, 

small organization, or small business, as 

defined by the RFA. Because of this 

certification, a regulatory flexibility 

analysis is not required and none has 

been prepared. 

This proposed rule does not contain 

a collection-of-information requirement 

subject to the provisions of the 

Paperwork Reduction Act (PRA) 

because the applicant is a Federal 

agency. 

Dated: October 23, 2023. 

Jonathan M. Kurland, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

List of Subjects in 50 CFR Part 217 

Administrative practice and 

procedure, Exports, Fish, Imports, 

Marine mammals, Penalties, Reporting 

and recordkeeping requirements, 

Transportation, Wildlife. 

For reasons set forth in the preamble, 

NMFS proposed to revise subpart of 50 

CFR part 217 as follows: 

PART 217—REGULATIONS 

GOVERNING THE TAKE OF MARINE 

MAMMALS INCIDENTAL TO 

SPECIFIED ACTIVITIES 

■ 1. The authority citation for part 217 

continues to read as follows: 

Authority: 16 U.S.C. 1361 et seq., unless 

otherwise noted. 

■ 2. Revised subpart I to part 217 to read 

as follows: 

Subpart I—Taking and Importing 

Marine Mammals Incidental to U.S. 

Navy Construction at the Naval 

Magazine Indian Island Ammunition 

Wharf, Puget Sound, Washington 

Sec. 

217.80 Specified activity and geographical 

region. 

217.81 Effective dates. 

217.82 Permissible methods of taking. 

217.83 Prohibitions. 

217.84 Mitigation requirements. 

217.85 Requirements for monitoring and 

reporting. 

217.86 Letters of Authorization. 

217.87 Renewals and modifications of 

Letters of Authorization. 

217.88–217.289 [Reserved] 

§ 217.80 Specified activity and 

geographical region. 

(a) Regulations in this subpart apply 

only to the U.S. Navy (Navy) and those 

persons it authorizes or funds to 

conduct activities on its behalf for the 

taking of marine mammals that occur in 

the areas outlined in paragraph (b) of 

this section and that occur incidental to 

construction activities, including 

maintenance and replacement of piles, 

at the Naval Magazine Indian Island 

Ammunition Wharf, Puget Sound, 

Washington. 

(b) The taking of marine mammals by 

the Navy may be authorized in a Letter 


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of Authorization (LOA) only if it occurs 

at the Naval Magazine Indian Island 

Ammunition Wharf, Puget Sound, 

Washington. 

§ 217.81 Effective dates. 

Regulations in this subpart are 

effective from October 1, 2024, until 

September 30, 2029. 

§ 217.82 Permissible methods of taking. 

Under an LOA issued pursuant to 

§ 216.106 of this chapter and § 217.86, 

the Holder of the LOA (hereinafter 

‘‘Navy’’) may incidentally, but not 

intentionally, take marine mammals 

within the area described in § 217.80(b) 

by harassment associated with 

construction activities, provided the 

activity is in compliance with all terms, 

conditions, and requirements of the 

regulations in this subpart and the 

applicable LOA. 

§ 217.83 Prohibitions. 

(a) Except for the takings 

contemplated in § 217.82 and 

authorized by a LOA issued under 

§ 216.106 of this chapter and § 217.86, it 

is unlawful for any person to do any of 

the following in connection with the 

activities described in § 217.80: 

(1) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or a LOA issued under 

§ 216.106 of this chapter and § 217.86; 

(2) Take any marine mammal not 

specified in such LOA; 

(3) Take any marine mammal 

specified in such LOA in any manner 

other than as specified; 

(4) Take a marine mammal specified 

in such LOA if NMFS determines such 

taking results in more than a negligible 

impact on the species or stocks of such 

marine mammal; or 

(5) Take a marine mammal specified 

in such LOA after NMFS determines 

such taking results in an unmitigable 

adverse impact on the species or stock 

of such marine mammal for taking for 

subsistence uses. 

(b) [Reserved] 

§ 217.84 Mitigation requirements. 

(a) When conducting the activities 

identified in § 217.80(a), the mitigation 

measures contained in any LOA issued 

under §§ 216.106 of this chapter and 

217.86 must be implemented. These 

mitigation measures include but are not 

limited to: 

(1) A copy of any issued LOA must be 

in the possession of the Navy, its 

designees, and work crew personnel 

operating under the authority of the 

issued LOA. 

(2) The Navy must follow mitigation 

procedures as described in § 217.84. 

Protected Species Observers (PSOs) 

must monitor the designated harassment 

zones to the maximum extent possible 

based on daily visibility conditions. 

(3) The Navy must ensure that 

construction supervisors and crews, the 

PSO team, and relevant Navy staff are 

trained prior to the start of construction 

activity subject to this rule, so that 

responsibilities, communication 

procedures, monitoring protocols, and 

operational procedures are clearly 

understood. New personnel joining 

during the project must be trained prior 

to commencing work. 

(4) The Navy 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. 

(5) For all pile driving activity, the 

Navy must implement shutdown zones 

with radial distances as identified in a 

LOA issued under § 216.106 of this 

chapter and § 217.86. If a marine 

mammal comes within or approaches 

the shutdown zone, pile driving activity 

must cease. 

(6) The Navy must shut down inwater activities when cetaceans are 

observed approaching or within any 

harassment zone. 

(7) The Navy must use soft start 

techniques when impact pile driving. 

Soft start requires contractors to provide 

an initial set of three strikes from the 

hammer at reduced energy, followed by 

a 30-second waiting period. Then two 

subsequent reduced-energy strike sets 

would occur. A soft start must be 

implemented at the start of each day’s 

impact pile driving and at any time 

following cessation of impact pile 

driving for a period of 30 minutes or 

longer. 

(8) The Navy must deploy PSOs as 

indicated in its Marine Mammal 

Monitoring Plan that has been approved 

by NMFS. 

(9) The Navy must employ bubble 

curtain systems during impact driving 

of 36-inch steel piles except under 

conditions where the water depth is less 

than 0.67 meters (2 feet) in depth. 

Bubble curtains must meet the following 

requirements: 

(i) The bubble curtain must distribute 

air bubbles around 100 percent of the 

piling perimeter for the full depth of the 

water column. 

(ii) The lowest bubble ring must be in 

contact with the mudline and/or rock 

bottom for the full circumference of the 

ring, and the weights attached to the 

bottom ring shall ensure 100 percent 

mudline and/or rock bottom contact. No 

parts of the ring or other objects shall 

prevent full mudline and/or rock bottom 

contact. 

(iii) The bubble curtain must be 

operated such that there is equal 

balancing of air flow to all bubblers. 

(10) For all pile driving activities, 

land-based PSOs must be stationed at 

the best vantage points practicable to 

monitor for marine mammals and 

implement shutdown/delay procedures. 

At least one vessel-based PSO must be 

employed when practicable. Additional 

PSOs must be added if warranted by site 

conditions and/or the level of marine 

mammal activity in the area. 

(11) Monitoring must take place from 

30 minutes prior to initiation of pile 

driving activity (i.e., pre-start clearance 

monitoring) through 30 minutes postcompletion of pile driving activity. Preactivity monitoring must be conducted 

for 30 minutes to ensure that the 

shutdown zone is clear of marine 

mammals, and pile driving may 

commence when PSOs have declared 

the shutdown zone clear of marine 

mammals. In the event of a delay or 

shutdown of activity resulting from 

marine mammals in the shutdown zone, 

animals must be allowed to remain in 

the shutdown zone (i.e., must leave of 

their own volition) and their behavior 

must be monitored and documented. If 

a marine mammal is observed within 

the shutdown zone, a soft start cannot 

proceed until the animal has left the 

zone or has not been observed for 15 

minutes. Monitoring must occur 

throughout the time required to drive a 

pile. If work ceases for more than 30 

minutes, the pre-activity monitoring of 

the shutdown zones must commence. A 

determination that the shutdown zone is 

clear must be made during a period of 

good visibility. 

(12) If a marine mammal approaches 

or enters the shutdown zone, all pile 

driving activities at that location must 

be halted. If pile driving is halted or 

delayed due to the presence of a marine 

mammal, the activity may not 

commence or resume until either the 

animal has voluntarily left and been 

visually confirmed beyond the 

shutdown zone or 15 minutes have 

passed without re-detection of the 

animal. 

(13) Pile driving activity must be 

halted upon observation of a species 

entering or within the harassment zone 

for 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. 


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(14) Trained PSOs must be placed at 

the best vantage point(s) practicable to 

monitor for marine mammals and 

implement shutdown or delay 

procedures when applicable through 

communication with the equipment 

operator. 

(15) Monitoring must be conducted by 

qualified, NMFS-approved PSOs, in 

accordance with the following 

conditions: 

(i) PSOs must be independent of the 

activity contractor (for example, 

employed by a subcontractor) and have 

no other assigned tasks during 

monitoring periods. 

(ii) 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. 

(iii) Other PSOs may substitute other 

relevant experience, education (degree 

in biological science or related field), or 

training for prior experience performing 

the duties of a PSO during construction 

activity pursuant to a NMFS-issued 

incidental take authorization. 

(iv) Where a team of three or more 

PSOs are required, a lead PSO or 

monitoring coordinator must be 

designated. The lead PSO must have 

prior experience performing the duties 

of a PSO during construction activity 

pursuant to a NMFS-issued incidental 

take authorization. 

(v) PSOs must be approved by NMFS 

prior to beginning any activity subject to 

these regulations. 

(b) [Reserved] 

§ 217.85 Requirements for monitoring and 

reporting. 

(a) The Navy must submit a Marine 

Mammal Monitoring Plan to NMFS for 

approval at least 90 days before the start 

of construction and abide by the Plan if 

approved. 

(b) The Navy must deploy PSOs as 

indicated in its approved Marine 

Mammal Monitoring Plan. 

(c) PSOs must be trained in marine 

mammal identification and behaviors. 

PSOs must have no other constructionrelated tasks while conducting 

monitoring. 

(d) The Navy must monitor the Level 

B harassment zones (areas where SPLs 

are equal to or exceed the 160 dB rootmean-squared (rms) threshold for 

impact driving and the 120 dB rms 

threshold during vibratory pile driving) 

to the maximum extent practicable and 

the shutdown zones. 

(e) The Navy must coordinate with 

the Center for Whale Research, Orca 

network, and NMFS to avoid noise 

exposure of southern resident killer 

whales. The Navy must shut down inwater activities when southern resident 

killer whales are observed or reported 

within or approaching any harassment 

zone. 

(f) The Navy must submit a draft 

monitoring report to NMFS within 90 

calendar days of the completion of each 

construction year. A draft 

comprehensive 5-year summary report 

must also be submitted to NMFS within 

90 days of the end of the project. The 

reports must detail the monitoring 

protocol and summarize the data 

recorded during monitoring. Final 

annual reports and the final 

comprehensive report must be prepared 

and submitted within 30 days following 

resolution of any NMFS comments on 

the draft report. If no comments are 

received from NMFS within 30 days of 

receipt of the draft report, the report 

must be considered final. If comments 

are received, a final report addressing 

NMFS comments must be submitted 

within 30 days after receipt of 

comments. The reports must contain the 

informational elements described at 

minimum below including: 

(1) Dates and times (begin and end) of 

all marine mammal monitoring; 

(2) Construction activities occurring 

during each daily observation period, 

including how many and what type of 

piles were driven or removed, by what 

method (i.e., impact or vibratory), the 

total duration of driving time for each 

pile (vibratory driving), and number of 

strikes for each pile (impact driving); 

(3) Environmental conditions during 

monitoring periods (at beginning and 

end of PSO shift and whenever 

conditions change significantly), 

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); 

(4) Upon observation of a marine 

mammal, the following information 

should be collected: 

(i) PSO who sighted the animal, 

observer location, and activity at time of 

sighting: 

(ii) Time of sighting; 

(iii) Identification of the animal (e.g., 

genus/species, lowest possible 

taxonomic level, or unidentified), PSO 

confidence in identification, and the 

composition of the group if there is a 

mix of species; 

(iv) Distances and bearings of each 

marine mammal observed in relation to 

the pile being driven for each sighting 

(if pile driving was occurring at time of 

sighting); 

(v) Estimated number of animals 

(min/max/best); 

(vi) Estimated number of animals by 

cohort (adults, juveniles, neonates, 

group composition, etc.); 

(vii) Animal’s closest point of 

approach and estimated time spent 

within the harassment zone; 

(viii) Description of any marine 

mammal behavioral observations (e.g., 

observed behaviors such as feeding or 

traveling), including an assessment of 

behavioral responses to the activity (e.g., 

no response or changes in behavioral 

state such as ceasing feeding, changing 

direction, flushing, or breaching); 

(ix) Detailed information about any 

implementation of any mitigation (e.g., 

shutdowns and delays), a description of 

specific actions that ensued, and 

resulting changes in the behavior of the 

animal, if any; and 

(x) All PSO datasheets and/or raw 

sightings data. 

(g) In the event that personnel 

involved in the construction activities 

discover an injured or dead marine 

mammal, the Navy must report the 

incident to NMFS Office of Protected 

Resources (OPR), and to the West Coast 

Regional Stranding Coordinator, as soon 

as feasible. If the death or injury was 

caused by the specified activity, the 

Navy must immediately cease the 

specified activities until NMFS OPR 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 

this rule and the LOA issued under 

§ 216.106 of this chapter and § 217.86. 

The Navy must not resume their 

activities until notified by NMFS. The 

report must include the following 

information: 

(1) Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

(2) Species identification (if known) 

or description of the animal(s) involved; 

(3) Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

(4) Observed behaviors of the 

animal(s), if alive; 

(5) If available, photographs or video 

footage of the animal(s); and 

(6) General circumstances under 

which the animal was discovered. 

§ 217.86 Letters of Authorization. 

(a) To incidentally take marine 

mammals pursuant to these regulations, 

the Navy must apply for and obtain an 

LOA. 

(b) An LOA, unless suspended or 

revoked, may be effective for a period of 

time not to exceed the expiration date 

of these regulations. 

(c) If an LOA expires prior to the 

expiration date of these regulations, the 


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Navy may apply for and obtain a 

renewal of the LOA. 

(d) In the event of projected changes 

to the activity or to mitigation and 

monitoring measures required by an 

LOA, the Navy must apply for and 

obtain a modification of the LOA as 

described in § 217.87. 

(e) The LOA must set forth the 

following information: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact (i.e., 

mitigation) on the species, its habitat, 

and on the availability of the species for 

subsistence uses; and 

(3) Requirements for monitoring and 

reporting. 

(f) Issuance of the LOA must be based 

on a determination that the level of 

taking will be consistent with the 

findings made for the total taking 

allowable under these regulations. 

(g) Notice of issuance or denial of an 

LOA must be published in the Federal 

Register within 30 days of a 

determination. 

§ 217.87 Renewals and modifications of 

Letters of Authorization. 

(a) An LOA issued under §§ 216.106 

of this chapter and 217.86 for the 

activity identified in § 217.80(a) may be 

renewed or modified upon request by 

the applicant, provided that: 

(1) The proposed specified activity 

and mitigation, monitoring, and 

reporting measures, as well as the 

anticipated impacts, are the same as 

those described and analyzed for these 

regulations; and 

(2) NMFS determines that the 

mitigation, monitoring, and reporting 

measures required by the previous LOA 

under these regulations were 

implemented. 

(b) For LOA modification or renewal 

requests by the applicant that include 

changes to the activity or the mitigation, 

monitoring, or reporting that do not 

change the findings made for the 

regulations or result in no more than a 

minor change in the total estimated 

number of takes (or distribution by 

species or years), NMFS may publish a 

notice of proposed LOA in the Federal 

Register, including the associated 

analysis of the change, and solicit 

public comment before issuing the LOA. 

(c) An LOA issued under § 216.106 of 

this chapter and § 217.86 for the activity 

identified in § 217.80(a) may be 

modified by NMFS under the following 

circumstances: 

(1) NMFS may modify (including 

augment) the existing mitigation, 

monitoring, or reporting measures (after 

consulting with Navy regarding the 

practicability of the modifications) if 

doing so creates a reasonable likelihood 

of more effectively accomplishing the 

goals of the mitigation and monitoring 

set forth in the preamble for these 

regulations; 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, or reporting 

measures in an LOA: 

(A) Results from Navy’s monitoring 

from previous years; 

(B) Results from other marine 

mammal and/or sound research or 

studies; and 

(C) Any information that reveals 

marine mammals may have been taken 

in a manner, extent or number not 

authorized by these regulations or 

subsequent LOAs; and 

(ii) If, through adaptive management, 

the modifications to the mitigation, 

monitoring, or reporting measures are 

substantial, NMFS must publish a 

notice of proposed LOA in the Federal 

Register and solicit public comment; 

(2) If NMFS determines that an 

emergency exists that poses a significant 

risk to the well-being of the species or 

stocks of marine mammals specified in 

a LOA issued pursuant to § 216.106 of 

this chapter and § 217.86, a LOA may be 

modified without prior notice or 

opportunity for public comment. 

Notification would be published in the 

Federal Register within 30 days of the 

action. 

§§ 217.88–217.89 [Reserved] 

[FR Doc. 2023–23737 Filed 10–27–23; 8:45 am] 

BILLING CODE 3510–22–P 


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