[Federal Register Volume 89, Number 175 (Tuesday, September 10, 2024)]
[Notices]
[Pages 73381-73392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20392]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE196]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Ferndale Pier Maintenance 
Activities in Ferndale, Washington

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

ACTION: Notice; issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
Petrogas Pacific, LLC (Petrogas) to incidentally harass marine mammals 
during construction activities associated with Ferndale Pier 
Maintenance Activities in Ferndale, Washington.

DATES: The authorization is effective from August 1, 2025 to July 31, 
2026.

ADDRESSES: Electronic copies of the application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-petrogas-pacific-llcs-ferndale-pier-maintenance-activities. In case of problems accessing these documents, 
please call the contact listed below.

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

SUPPLEMENTARY INFORMATION:

Background

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

Summary of Request

    On January 3, 2024 we received a request from Petrogas for an IHA 
to take marine mammals incidental to Ferndale Pier Maintenance 
Activities in Ferndale, Washington. Following NMFS' review of the 
application, Petrogas submitted a revised version on March 26, 2024. 
The application was deemed adequate and complete on April 25, 2024. The 
notice of proposed IHA published for public comment on June 4, 2024 (89 
FR 47903). Petrogas requested authorization of take of harbor seal, 
California sea lion, Steller sea lion and harbor porpoise by Level B 
harassment and, for harbor seal and harbor porpoise only, take by Level 
A harassment. Neither Petrogas nor NMFS expect serious injury or 
mortality to result from this activity and, therefore, an IHA is 
appropriate.

Description of the Specified Activity

    Petrogas is planning to remove the existing timber Pier that has 
served as a loading facility since 1965 and replace it with a new 
structure that meets current industry best practices. The activity 
includes vibratory removal of existing timber piles and installation of 
steel piles by both vibratory and impact driving. Due to in-water work 
timing restrictions to protect Endangered Species Act (ESA)-listed 
salmonids, all planned in-water construction in this area is limited to 
a work window

[[Page 73382]]

beginning August 1 and ending February 1. However, since the Strait of 
Georgia is a very large water body with a long fetch, calm in-water 
work conditions are typically only available from August to the end of 
October. In-water construction will occur for 17 days intermittently 
between August 1, 2025 and October 31, 2026. Take of marine mammals is 
anticipated to occur due to vibratory pile removal as well as impact 
and vibratory pile installation.
    A detailed description of the planned project is provided in the 
Federal Register notice for the proposed IHA (89 FR 47903, June 4, 
2024). A detailed description is not provided here. Please refer to 
that Federal Register notice for the description of the specific 
activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Petrogas was 
published in the Federal Register on June 4, 2024 (89 FR 47903). That 
notice described, in detail, Petrogas' activity, the marine mammal 
species that may be affected by the activity, and the anticipated 
effects on marine mammals. In that notice, we requested public input on 
the request for authorization described therein, our analyses, the 
proposed authorization, and any other aspect of the notice of proposed 
IHA, and requested that interested persons submit relevant information, 
suggestions, and comments. During the 30-day public comment period, 
NMFS did not receive any public comments.

Changes From the Proposed IHA to Final IHA

    The notice of proposed IHA (89 FR 47903, June 4, 2024) indicated 
that the IHA would be effective from August 1, 2024 to July 31, 2025. 
Petrogas has decided to delay the start of the project by 1 year. The 
new effective dates are from August 1, 2025 to July 31, 2026.

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history of the potentially affected species. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions, instead of reprinting the information. Additional 
information regarding population trends and threats may be found in 
NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and 
more general information about these species (e.g., physical and 
behavioral descriptions) may be found on NMFS' website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which exposure is expected 
for this activity and summarizes information related to the population 
or stock, including regulatory status under the MMPA and ESA and 
potential biological removal (PBR), where known. PBR is defined by the 
MMPA as the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population (as described in NMFS' SARs). While no serious injury or 
mortality is anticipated or authorized here, 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 managed stocks in this region are assessed in 
NMFS' Alaska and Pacific SARs. All values presented in table 1 are the 
most recent available at the time of publication (including from the 
draft 2023 SARs) and are available online at: (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports). All species that could potentially occur in 
the planned project area are included in table 2 of the IHA 
application. While the gray whale, minke whale, Dall's porpoise, and 
the Eastern North Pacific Northern Resident stock of killer whale have 
been reported in the area, the temporal and/or spatial occurrence of 
these species is such that take is not expected to occur, and they are 
not discussed further beyond the explanation provided in the Federal 
Register notice for the proposed IHA (89 FR 47903, June 4, 2024).

                                             Table 1--Species for Which Take Could Occur in the Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                       Stock abundance
                                                                                 ESA/MMPA status;      (CV, Nmin, most                     Annual M/SI3
           Common name                Scientific name            Stock          strategic (Y/N) \1\    recent abundance         PBR             \3\
                                                                                                         survey) \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (rorquals)
    Humpback Whale...............  Megaptera             Central America/      E, D, Y.............  1,494 (0.171,                   3.5            14.9
                                    novaeangliae.         Southern Mexico--CA/                        1,284, 2021).
                                                          OR/WA.
    Humpback Whale...............  Megaptera             Mainland Mexico--CA/  T, D, Y.............  3,477 (0.101,                    43              22
                                    novaeangliae.         OR/WA.                                      3,185, 2018).
    Humpback Whale...............  Megaptera             Hawaii..............  -, -, N.............  11,278 (0.56,                   127           27.09
                                    novaeangliae.                                                     7,265, 2020).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae
    Killer Whale.................  Orcinus orca........  Eastern North         E, D, Y.............  73 (N/A, 73, 2022).            0.13               0
                                                          Pacific Southern
                                                          Resident.
    Killer Whale.................  Orcinus orca........  West Coast Transient  -, -, N.............  349 (N/A, 349,                  3.5             0.4
                                                                                                      2018).
Family Phocoenidae (porpoises)
    Harbor porpoise..............  Phocoena phocoena...  Washington Inland     -, -, N.............  11,233 (0.37,                    66           >=7.2
                                                          Waters.                                     8,308, 2015).
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 73383]]

 
                                                               Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions)
    California Sea Lion..........  Zalophus              U.S.................  -, -; N.............  257,606 (N/A,                14,011            >321
                                    californianus.                                                    233,515, 2014).
    Steller Sea Lion.............  Eumetopias jubatus..  Eastern.............  -, -; N.............  36,308 (N/A,                  2,178            93.2
                                                                                                      36,308, 2022).
Family Phocidae (earless seals)
    Harbor Seal..................  Phoca vitulina......  Washington Northern   -, -, N.............  16,451 (0.07,                   928              40
                                                          Inland Waters.                              15,462, 2019).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
  (https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/). 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-assessments assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.

    A detailed description of the species likely to be affected by 
Petrogas' construction project, including brief introductions to the 
species and relevant stocks as well as available information regarding 
population trends and threats, and information regarding local 
occurrence, were provided in the Federal Register notice for the 
proposed IHA (89 FR 47903, June 4, 2024); since that time, we are not 
aware of any changes in the status of these species and stocks; 
therefore, detailed descriptions are not provided here. Please refer to 
that Federal Register notice for these descriptions. Please also refer 
to the NMFS website (https://www.fisheries.noaa.gov/find-species) for 
generalized species accounts.

Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals 
underwater, and exposure to anthropogenic sound can have deleterious 
effects. To appropriately assess the potential effects of exposure to 
sound, it is necessary to understand the frequency ranges marine 
mammals are able to hear. 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 low-frequency cetaceans where the 
lower bound was deemed to be biologically implausible and the lower 
bound from Southall et al. (2007) retained. Marine mammal hearing 
groups and their associated hearing ranges are provided in table 2.

                  Table 2--Marine Mammal Hearing Groups
                              [NMFS, 2018]
------------------------------------------------------------------------
            Hearing group                 Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen   7 Hz to 35 kHz.
 whales).
Mid-frequency (MF) cetaceans           150 Hz to 160 kHz.
 (dolphins, toothed whales, beaked
 whales, bottlenose whales).
High-frequency (HF) cetaceans (true    275 Hz to 160 kHz.
 porpoises, Kogia, river dolphins,
 Cephalorhynchid, Lagenorhynchus
 cruciger & L. australis).
Phocid pinnipeds (PW) (underwater)     50 Hz to 86 kHz.
 (true seals).
Otariid pinnipeds (OW) (underwater)    60 Hz to 39 kHz.
 (sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
  composite (i.e., all species within the group), where individual
  species' hearing ranges are typically not as broad. Generalized
  hearing range chosen based on ~65 dB threshold from normalized
  composite audiogram, with the exception for lower limits for LF
  cetaceans (Southall et al. 2007) and PW pinniped (approximation).

    The pinniped functional hearing group was modified from Southall et 
al. (2007) on the basis of data indicating that phocid species have 
consistently demonstrated an extended frequency range of hearing 
compared to otariids, especially in the higher frequency range 
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth et al., 
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

    The effects of underwater noise from Petrogas' activities have the 
potential to result in harassment of marine mammals in the vicinity of 
the southeastern shores of the Strait of Georgia, in Puget Sound, 
Washington.

[[Page 73384]]

The notice of proposed IHA (89 FR 47903, June 4, 2024) included a 
discussion of the effects of anthropogenic noise on marine mammals and 
the potential effects of underwater noise from vibratory pile driving 
on marine mammals and their habitat. That information and analysis is 
referenced in this final IHA determination and is not repeated here; 
please refer to the notice of proposed IHA (89 FR 47903, June 4, 2024).

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
authorized through the IHA, which informed NMFS' consideration of 
``small numbers,'' the negligible impact determinations, and impacts on 
subsistence uses.
    Harassment is the only type of take expected to result from these 
activities. Except with respect to certain activities not pertinent 
here, section 3(18) of the MMPA 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 stressors (i.e., pile driving) 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 high frequency species (harbor 
porpoise) and phocids (harbor seal). Auditory injury is unlikely to 
occur for other species. The required 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 authorized for this activity. Below we describe how the 
authorized take numbers were 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 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 authorized 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 permanent threshold shift (PTS) of some 
degree (equated to Level A harassment). Acoustic thresholds used in 
this analysis were discussed in detail in the notice of proposed IHA 
(89 FR 47903, June 4, 2024) and not repeated here. Please see that 
notice for additional detail.

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 (TL) 
coefficient.
    The sound field in the project area is the existing background 
noise plus additional construction noise from the project. Marine 
mammals are expected to be affected via sound generated by the primary 
components of the project (i.e., impact pile driving, vibratory pile 
driving and removal). Additionally, vessel traffic and other commercial 
and industrial activities in the project area may contribute to 
elevated background noise levels which may mask sounds produced by the 
project.
    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 * Log<INF>10</INF> (R<INF>1</INF>/R<INF>2</INF>),

where

TL = transmission loss in dB
B = transmission loss coefficient
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement

    This formula neglects loss due to scattering and absorption, which 
is assumed to be zero here. The degree to which underwater sound 
propagates away from a sound source is dependent on a variety of 
factors, most notably the water bathymetry and presence or absence of 
reflective or absorptive conditions including in-water structures and 
sediments. Spherical spreading occurs in a perfectly unobstructed 
(free-field) environment not limited by depth or water surface, 
resulting in a 6-dB reduction in sound level for each doubling of 
distance from the source (20*log[range]). Cylindrical spreading occurs 
in an environment in which sound propagation is bounded by the water 
surface and sea bottom, resulting in a reduction of 3 dB in sound level 
for each doubling of distance from the source (10*log[range]). A 
practical spreading value of 15 is often used under conditions, such as 
the project site, where water increases with depth as the receiver 
moves away from the shoreline, resulting in an expected propagation 
environment that would lie between spherical and cylindrical spreading 
loss conditions. Practical spreading loss is assumed here.
    The intensity of pile driving sounds is greatly influenced by 
factors such as the type of piles, hammers, and the physical 
environment in which the activity takes place. In order to calculate 
the distances to the Level A harassment and the Level B harassment 
sound thresholds for the methods and piles being used in this project, 
NMFS used acoustic monitoring data from other locations to develop 
proxy source levels for the various pile types, sizes and methods. The 
project includes vibratory and impact pile installation of 30-in steel 
piles and vibratory removal of 16-in timber piles. Source levels for 
the various pile sizes and driving methods are presented in table 3. 
Bubble curtains will employed during all impact driving, with an 
assumed 5 dB effective attenuation (Caltrans 2020).

[[Page 73385]]



                      Table 3--Proxy Sound Source Levels for Pile Sizes and Driving Methods
----------------------------------------------------------------------------------------------------------------
                                                                  Noise level \1\                  Distance from
                 Equipment used                  ------------------------------------------------   measurement
                                                      dB peak         dB rms          dB SEL            (m)
----------------------------------------------------------------------------------------------------------------
Impact pile driving 30-inch steel piles \2\.....             210             190             177              10
Vibratory pile driving 30-inch steel piles \3\..             196             159  ..............              10
Vibratory pile driver pulling 16-inch timber      ..............             162  ..............              10
 piles\3\.......................................
----------------------------------------------------------------------------------------------------------------
\1\ SL values shown do not include -5 dB attenuation for bubble curtain usage. The -5 dB correction for
  attenuation was applied to determine harassment isopleths (Table 5).
\2\ Caltrans 2015.
\3\ Caltrans 2020.

    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 or vibratory pile driving and 
removal, 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. Inputs used for impact 
driving in the optional User Spreadsheet tool, and the resulting 
estimated isopleths, are reported below in table 4 and table 5 below.

                        Table 4--User Spreadsheet Inputs for Level A Harassment Isopleths
----------------------------------------------------------------------------------------------------------------
                                                                               30-in steel
                   Inputs                          30-in steel impact           vibratory         16-in timber
                                                      installation             installation    vibratory removal
----------------------------------------------------------------------------------------------------------------
Spreadsheet Tab Used.......................  (E.1) Impact Pile Driving          (A.1) Vibratory Pile Driving
                                              (STATIONARY SOURCE:                (STATIONARY: Non-impulsive,
                                              Impulsive, Intermittent).                  Continuous)
                                                                           -------------------------------------
Source Level (Single Strike/shot SEL)......  177..........................
Peak.......................................  210..........................
RMS........................................  190..........................                159                162
Weighting Factor Adjustment (kHz)..........  2............................                2.5                2.5
Strikes per pile...........................  2000.........................
Piles Per day..............................  1.5..........................                1.5                 20
Propagation (xLogR)........................  15...........................                 15                 15
Duration...................................  .............................                 20                  2
Distance of source level measurement         10...........................                 10                 10
 (meters).
----------------------------------------------------------------------------------------------------------------


                                  Table 5--Calculated Level A and Level B Harassment Isopleths (m) and Ensonified Areas
                                                                 [km\2\ in Parentheses]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Level A pinnipeds                       Level A cetaceans
                     Pile size/type                      --------------------------------------------------------------------------------     Level B
                                                            Harbor seal      Sea lions          LF              MF              HF
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Impact Installation                                       160 dB
                                                                                                                                               threshold
                                                         -----------------------------------------------------------------------------------------------
30-in steel.............................................   205.4 (0.139)      15 (0.001)   383.2 (0.463)    13.7 (0.001)   457.2 (0.665)   464.2 (0.679)
                                                         -----------------------------------------------------------------------------------------------
                                                                                 Vibratory Installation/Removal *                                 120 dB
                                                                                                                                               threshold
                                                         -----------------------------------------------------------------------------------------------
16-in Timber Piles......................................             3.7             0.3             6.1             0.5             9.0  6,309.6 (62.5)
30-in steel.............................................             1.9             0.1             3.2             0.3             4.7    3,981 (24.9)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The Level A harassment isopleths associated with vibratory installation/removal are all below the minimum shutdown zone and result in very small
  ensonified areas. Therefore they are not provided in this table but will be included in the following calculated take tables.


[[Page 73386]]

Marine Mammal Occurrence and Take Estimation

    In this section we provide information about the occurrence of 
marine mammals, including density or other relevant information which 
will inform the take calculations. The primary source for density 
estimates is from the Navy Marine Species Density Database (NMSDD) 
Phase III for the Northwest Training and Testing Study Area (Navy, 
2019). Therefore, a lower value was used for harbor porpoise density. 
These density estimates are shown in table 6 and will be used to 
calculate take due to the lack of site-specific data that is available.
    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 x Level B harassment zone (km\2\) x maximum days 
of pile driving

where

N = density estimate (animals per km\2\) used for each species.

 Table 6--Marine Mammal Species Densities Used for Exposure Calculations
------------------------------------------------------------------------
                                                              Density
            Species                Region characterized      (animals/
                                                              km\2\)
------------------------------------------------------------------------
Humpback Whale.................  North Puget Sound/San            0.0027
                                  Juan Islands (Fall and
                                  Winter).
Killer Whale (Southern           North Puget Sound/San            0.0078
 Resident).                       Juan.
                                 Islands (Fall and
                                  Winter).
Killer Whale (Transient).......  North Puget Sound/San            0.0031
                                  Juan Islands (Fall and
                                  Winter).
Harbor Porpoise................  North Puget Sound......            2.16
Steller Sea Lion...............  North Puget Sound/San            0.0027
                                  Juan Islands (Fall).
California Sea Lion............  North Puget Sound/San            0.0179
                                  Juan Islands (Fall).
Harbor Seal....................  North Puget Sound/San              0.76
                                  Juan Islands (Fall).
------------------------------------------------------------------------
Source: Navy 2019.

    Table 7 below shows the total calculated take by Level A and Level 
B harassment over the 17 in-water work days for the Petrogas activity 
resulting in total calculated take.

                           Table 7--Calculated Take by Level A and Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                      7 days          7 days          10 days
                                 ------------------------------------------------
           Total days                               30-in steel    16-in timber                      Requested
                                    30-in steel      vibratory       vibratory                     level A take
                                  impact driving      driving         removal
----------------------------------------------------------------------------------------------------------------
                                         Level A         Level A         Level A          Totals           Total
----------------------------------------------------------------------------------------------------------------
Humpback Whale..................           0.009           0.000           0.000           0.009               0
Southern Resident Killer Whales.           0.000           0.000           0.000           0.000               0
Transient Killer whales.........           0.000           0.000           0.000           0.000               0
Harbor Porpoise.................            10.1           0.005           0.007          10.063              10
Steller Sea Lion................           0.000           0.000           0.000           0.000               0
Cali Sea Lion...................           0.000           0.000           0.000           0.000               0
Harbor Seal.....................           0.737           0.002           0.002           0.741               1
----------------------------------------------------------------------------------------------------------------
Level B Calculated Take           ..............  ..............  ..............   Total Level B       Requested
                                                                                      Calculated    Level B Take
                                                                                            Take
----------------------------------------------------------------------------------------------------------------
                                         Level B         Level B         Level B          Totals
----------------------------------------------------------------------------------------------------------------
Humpback Whale..................           0.013           0.471           1.689           2.172               0
Southern Resident Killer Whale..           0.037           1.359           4.878           6.275               0
Transient Killer Whale..........           0.015           0.533           1.914           2.462               0
Harbor Porpoise.................          10.271         376.405       1,350.927           1,738           1,738
Steller Sea Lion................           0.013           0.471           1.689           2.172              17
California Sea Lion.............           0.085           3.119          11.195          14.400              51
Harbor Seal.....................           3.614         132.439         475.326         611.379             611
----------------------------------------------------------------------------------------------------------------

Humpback Whale

    Humpback whales are an uncommon occurrence near the project area 
but they do have the potential to be in the area as they migrate to 
feeding grounds to the north and mating grounds far south. Based on 
best available density estimates Petrogas has calculated the potential 
take of two humpback whales by Level B harassment. However, they will 
shut down whenever humpback whales approach the Level B harassment 
zone. Given the low density of humpback whales in the project area, the 
ability to detect the whales visually from a considerable distance, the 
capacity to track whales through the Orca Network, and the anticipated 
efficacy of required mitigation and monitoring measures, Petrogas did 
not request take. NMFS concurs with this assessment and, therefore, has 
not authorized take of humpback whales.

[[Page 73387]]

Killer Whales

    Both Southern resident killer whales (SRKWs) and transient killer 
whales could occur near the project area. Take calculations indicate 
that up to six SRKWs and two transient whales could be taken by Level B 
harassment. Even though the project site is located in summer core area 
critical habitat, the southeastern corner of the Strait of Georgia is 
not a location where SRKW are commonly located. After reviewing the 
monthly reports of September through October from 2016-2023, the 
occurrence of killer whales from any stock was uncommon in the 
southeastern corner of the Strait of Georgia. Furthermore SRKWs were 
far less prevalent when compared to transients (ORCA 2024). Given the 
expansive range of SRKWs; the relatively small area of their habitat 
that may be affected by the planned project; the ready availability of 
habitat of similar or higher value, and short-term nature of 
construction (17 days), NMFS concluded that take of SRKWs would be 
unlikely. Additionally, Petrogas will shut down whenever a killer whale 
from any stock is observed approaching a harassment zone so take of 
transients is also not likely. Given the ability to visually detect 
killer whales from planned protected species observer (PSO) locations 
(including boats), the capacity to track SRKWs through contact with the 
ORCA Network, and the expected efficacy of required mitigation and 
monitoring measures, Petrogas did not request take. NMFS concurs and 
has not authorized take of killer whales.

Harbor Porpoise

    Harbor porpoises are commonly found in the Strait of Georgia as 
indicated by regular sightings from the British Columbia Cetacean 
Sightings Network and the Orca Network (Zier, 2015). Use of NMSDD data 
yielded an estimated 10 takes by Level A harassment and 1,738 by Level 
B harassment. NMFS concurs. Note that Petrogas has committed to 
extending the shutdown zone beyond the Level A harassment zone in order 
to minimize potential PTS, but also requested limited take by Level A 
harassment in case some animals enter into the injury zone unseen by 
PSOs and remain for sufficient time to incur PTS. NMFS has authorized 
10 takes by Level A harassment and 1,738 takes by Level B harassment.

Steller Sea Lion

    Calculated take based upon the species density in the Strait of 
Georgia yielded two potential takes by Level B harassment during the 17 
days of in-water pile driving work. While there are no known nearby 
haulouts, there are haulouts in the greater Strait of Georgia. Petrogas 
felt that the calculated value was too low since this species is known 
to travel significant distances in search for prey, possibly into the 
marine waters of the Cherry Point Aquatic Reserve.
    NMFS reviewed other IHA monitoring reports from Puget Sound and 
found that the Seattle Pier 63 construction project (87 FR 31985, May 
26, 2022) reported a maximum of one animal taken per day over 17 in-
water work days between October 12 and November 30, 2022. Therefore, 
NMFS has authorized 17 (1/day) takes of Steller sea lion by Level B 
harassment.

California Sea Lion

    Calculated take based upon the species density in the Strait of 
Georgia found 14 potential takes by Level B harassment during the 17 
days of pile driving work at the Petrogas pier. While there are no 
known nearby haulouts, there are haulouts in the greater Strait of 
Georgia, and because this species may travel significantly in search 
for prey, possibly into the marine waters of the Cherry Point Aquatic 
Reserve. Petrogas felt this estimate was also low. Results from the 
Seattle Pier 63 project showed a maximum of three California sea lions 
taken per day over 17 in-water work days between October 12 and 
November 30, 2022. Assuming the same maximum number of takes (3) over 
17 planned days of in-water work, NMFS has authorized 51 takes by Level 
B harassment.

Harbor Seal

    Harbor seals are common in the Strait of Georgia. Use of NMSDD 
(Navy 2019) found that there would be a single take by Level A 
harassment. Note that Petrogas committed to extending the shutdown zone 
beyond the Level A harassment zone in order to minimize potential PTS 
to harbor seals, but also requested a single take by Level A harassment 
in case some animals enter into the injury zone unseen by PSOs and 
remain for sufficient duration to incur PTS. The density data utilized 
also resulted in 611 calculated takes by Level B harassment. Therefore, 
NMFS is authorizing a single take of harbor seal by Level A harassment 
and 611 takes by Level B harassment.
    Authorized takes by Level A and Level B harassment are shown in 
table 8.

             Table 8--Authorized Take of Marine Mammals by Level A and Level B Harassment by Species and Stock and Percent of Take by Stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                            Authorized
                                                                               Stock                                           Total          take as
                Common name                             Stock                abundance        Level A         Level B       authorized     percentage of
                                                                                                                               take            stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor porpoise...........................  Washington Inland Waters....          11,233              10           1,738           1,748         15.56.4
Steller sea lion..........................  Eastern U.S.................          36,308  ..............              17              17            0.05
California sea lion.......................  U.S.........................         257,606  ..............              51              51            0.02
Harbor seal...............................  Washington Northern Inland..          16,451               1             611             612             3.7
--------------------------------------------------------------------------------------------------------------------------------------------------------

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for certain 
subsistence uses. 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

[[Page 73388]]

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.
    Pre-start Clearance Monitoring--Prior to the start of daily in-
water construction activity, or whenever a break in pile driving/
removal of 30 minutes or longer occurs, PSOs must observe the shutdown 
and monitoring zones for a period of 30 minutes. The shutdown zone will 
be considered cleared when a marine mammal has not been observed within 
the zone for that 30-minute period. If a marine mammal is observed 
within the shutdown zone, a soft-start (discussed below) cannot proceed 
until the animal has left the zone or has not been observed for 15 
minutes. If the monitoring zone has been observed for 30 minutes and 
marine mammals are not present within the zone, soft-start procedures 
can commence and work can continue. Pre-start clearance monitoring must 
be conducted during periods of visibility sufficient for the lead PSO 
to determine that the shutdown zones indicated in table 9 are clear of 
marine mammals. Pile driving may commence following 30 minutes of 
observation when the determination is made that the shutdown zones are 
clear of marine mammals. If work ceases for more than 30 minutes, the 
pre-activity monitoring of both the monitoring zone and shutdown zone 
would commence.
    Implementation of Shutdown Zones--For all pile driving/removal 
activities, Petrogas must implement shutdowns within designated zones. 
The purpose of a shutdown zone is generally to define an area within 
which shutdown of activity would occur upon sighting of a marine mammal 
(or in anticipation of an animal entering the defined area). 
Implementation of shutdowns will be used to avoid or minimize takes by 
Level A harassment from impact pile driving for all four species for 
which take may occur. Shutdown zones will be based upon the Level A 
harassment isopleth for each pile size/type and driving method where 
applicable. This is anticipated to reduce Level A harassment exposures 
without resulting in a substantial risk to the project schedule that 
could occur if marine mammals repeatedly enter into larger shutdown 
zones.
    A minimum shutdown zone of 10 m will be implemented for all in-
water construction activities to avoid physical interaction with marine 
mammals. Authorized shutdown and monitoring zones for each activity 
type are shown in table 9.

                        Table 9--Shutdown Zones during Pile Installation and Removal (m)
----------------------------------------------------------------------------------------------------------------
                                                                Shutdown zone                       Level B
                Pile size/type                ------------------------------------------------     harassment
                                                     HF            Phocid          Otariid      monitoring zone
----------------------------------------------------------------------------------------------------------------
16-in timber Vibratory.......................              10              10              10              6,310
30-in steel Vibratory........................              10              10              10              3,990
30-in steel Impact...........................             460             210              20                465
----------------------------------------------------------------------------------------------------------------

    All marine mammals will be monitored in the Level B harassment 
zones and throughout the area as far as visual monitoring can take 
place. If a marine mammal enters the Level B harassment zone, in-water 
activities would continue and PSOs will document the animal's presence 
within the estimated harassment zone.
    If a species for which authorization has not been granted, or a 
species which has been granted but the authorized takes are met, is 
observed approaching or within the Level B harassment zone, pile 
driving activities will be shut down immediately. Activities will not 
resume until the animal has been confirmed to have left the area or 15 
minutes has elapsed with no sighting of the animal.
    Coordination with Local Marine Mammal Research Network--Prior to 
the start of pile driving for the day the PSOs will contact the Orca 
Network to find out the location of the nearest sightings of SRKW and 
humpback whale. Petrogas must delay or halt pile driving activities if 
a SRKW, unidentified killer whale (i.e. transient) or humpback whales 
are sighted within the vicinity of the project area and are approaching 
the Level B harassment zones (table 9) during in-water activities. 
Finally, if a SRKW, unidentified killer whale, or humpback whale enters 
the Level B harassment zone undetected, in-water pile driving must be 
suspended immediately upon detection and must not resume until the 
animal exits the Level B harassment zone or 15 minutes have passed 
without re-detection of the animal.
    Soft Start--Soft-start procedures are believed 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 will 
be required to provide an initial set of strikes from the hammer at 
reduced energy, with each strike followed by a 30-second waiting 
period. This procedure will be conducted a total of three times before 
impact pile driving begins. Soft start will 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. Soft start 
is not required during vibratory pile driving and removal activities.
    Bubble Curtain--A bubble curtain must be employed during impact 
installation or proofing of steel piles. A noise attenuation device 
will 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. 
Any other attenuation measure will be required to provide 100 percent 
coverage in the water column for the full depth of the pile. The lowest 
bubble ring must be in contact with the mudline for the full 
circumference of the ring. The weights attached to the bottom ring will 
ensure 100 percent mudline contact. No parts of the ring or other 
objects will prevent full mudline contact. Air flow to the bubblers 
must be balanced around the circumference of the pile.

[[Page 73389]]

    Based on our evaluation of the applicant's measures, NMFS has 
determined that the required mitigation measures provide the means of 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

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

Visual Monitoring

    Monitoring must be conducted by NMFS-approved observers in 
accordance with section 13 of the application. Trained observers will 
be placed from 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. Observer 
training must be provided prior to project start, and shall include 
instruction on species identification (sufficient to distinguish the 
species in the project area), description and categorization of 
observed behaviors and interpretation of behaviors that may be 
construed as being reactions to the specified activity, proper 
completion of data forms, and other basic components of biological 
monitoring, including tracking of observed animals or groups of animals 
such that repeat sound exposures may be attributed to individuals (to 
the extent possible).
    Monitoring will be conducted 30 minutes before, during, and 30 
minutes after pile driving/removal activities. In addition, observers 
must record all incidents of marine mammal occurrence, regardless of 
distance from activity, and will document any behavioral reactions in 
concert with distance from piles being driven or removed. Pile driving/
removal activities include the time to install or remove a single pile 
or series of piles, as long as the time elapsed between uses of the 
pile driving equipment is no more than 30 minutes.
    A minimum of three PSOs must be on duty during all in-water pile 
driving activities. Two shore-based observers will be stationed at 
locations offering best line of sight views to monitor the entirety of 
the shutdown zones and provide the most complete coverage of the 
monitoring zones. The first observer may be on the alumina silos to the 
east, roughly 100 feet (ft) (30.5 meters (m)) above the water to scan 
the wider area. The second observer may be on the alumina unloader at 
the north end of the Pier. This would place the observer roughly 50 ft 
(15.25 m) above water, approximately 300 ft (91.5 m) south of the pile 
driving activities. Additionally, Petrogas will deploy one boat-based 
PSO that will be positioned at a location or moving in a pattern that 
offers the most complete visual coverage of the monitoring zone. Note, 
however, PSO position(s) may vary based on construction activity and 
location of piles or equipment.
    The U.S. Fish and Wildlife Service, (USFWS) under ESA section 7, is 
requiring Petrogas to utilize observers to monitor for the endangered 
marbled murrelet (Brachyramphus marmoratus). As long as an observer 
meets the NMFS PSO qualifications as described below and has been 
approved by NMFS, they may also serve as a USFWS-certified observer for 
marbled murrelets. NMFS must be notified if any NMFS-approved PSO is 
serving in this dual-purpose role.
    PSOs will scan the waters using binoculars and would use a handheld 
range-finder device to verify the distance to each sighting from the 
project site. All PSOs must be trained in marine mammal identification 
and behaviors and are required to have no other project-related tasks 
while conducting monitoring. In addition, monitoring will be conducted 
by qualified observers, who must be placed at the best vantage point(s) 
practicable to monitor for marine mammals and implement shutdown/delay 
procedures when applicable by calling for the shutdown to the hammer 
operator via a radio. Petrogas will adhere to the following observer 
qualifications:
    (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 is required, a lead 
observer or monitoring coordinator must be designated. The lead 
observer 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 this IHA.
    Additional standard observer qualifications include:
    <bullet> Ability to conduct field observations and collect data 
according to assigned protocols;
    <bullet> Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
    <bullet> Sufficient training, orientation, or experience with the 
construction

[[Page 73390]]

operation to provide for personal safety during observations;
    <bullet> Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior; and
    <bullet> Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.

Reporting

    A draft marine mammal monitoring report must be submitted to NMFS 
within 90 days after the completion of pile driving and removal 
activities. It will include an overall description of work completed, a 
narrative regarding marine mammal sightings, and associated PSO data 
sheets. Specifically, the report must include:
    <bullet> Dates and times (begin and end) of all marine mammal 
monitoring.
    <bullet> Construction activities occurring during each daily 
observation period, including the number and type of piles driven or 
removed and by what method (i.e., impact driving) and the total 
equipment duration for cutting for each pile or total number of strikes 
for each pile (impact driving).
    <bullet> PSO locations during marine mammal monitoring.
    <bullet> Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including Beaufort sea state and any other relevant 
weather conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance.
    <bullet> Upon observation of a marine mammal, 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 bearing of each 
marine mammal observed relative to the pile being driven for each 
sighting (if pile driving was occurring at time of sighting); Estimated 
number of animals (min/max/best estimate); Estimated number of animals 
by cohort (adults, juveniles, neonates, group composition, etc.); 
Animal's closest point of approach and estimated time spent within the 
harassment zone; and 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).
    <bullet> Number of marine mammals detected within the harassment 
zones, by species.
    <bullet> Detailed information about any implementation of any 
mitigation triggered (e.g., shutdowns and delays), a description of 
specific actions that ensued, and resulting changes in behavior of the 
animal(s), if any.
    If no comments are received from NMFS within 30 days, the draft 
final report will constitute the final report. If comments are 
received, a final report addressing NMFS comments must be submitted 
within 30 days after receipt of comments.

Reporting Injured or Dead Marine Mammals

    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury, serious injury or mortality, Petrogas 
must immediately cease the specified activities and report the incident 
to the Office of Protected Resources, NMFS, and the West Coast Region 
regional stranding coordinator. The report must include the following 
information:
    <bullet> Description of the incident;
    <bullet> Environmental conditions (e.g., Beaufort sea state, 
visibility);
    <bullet> Description of all marine mammal observations in the 24 
hours preceding the incident;
    <bullet> Species identification or description of the animal(s) 
involved;
    <bullet> Fate of the animal(s); and
    <bullet> Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities will not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with Petrogas to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Petrogas will not be able 
to resume their activities until notified by NMFS.
    In the event that Petrogas discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (e.g., in less than 
a moderate state of decomposition as described in the next paragraph), 
Petrogas must immediately report the incident to the Office of 
Protected Resources (<a href="/cdn-cgi/l/email-protection#adfdff83e4f9fd83e0c2c3c4d9c2dfc4c3caffc8ddc2dfd9deedc3c2cccc83cac2db"><span class="__cf_email__" data-cfemail="376765197e6367197a58595e4358455e595065524758454344775958565619505841">[email protected]</span></a>), NMFS and to 
the West Coast Region regional stranding coordinator as soon as 
feasible. The report must include the same information identified in 
the paragraph above. Activities will be able to continue while NMFS 
reviews the circumstances of the incident. NMFS will work with Petrogas 
to determine whether modifications in the activities are appropriate.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough 
information on which to base an impact determination. In addition to 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature of any impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), as well as 
effects on habitat, and the likely effectiveness of the mitigation. We 
also assess the number, intensity, and context of estimated takes by 
evaluating this information relative to population status. Consistent 
with 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 majority of our analysis applies to all 
the species listed in table 8, 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 between species or stocks, or groups of species, in 
anticipated individual responses to activities,

[[Page 73391]]

impact of expected take on the population due to differences in 
population status, or impacts on habitat, they are described 
independently in the analysis below.
    Pile driving and removal 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 harassment and Level B harassment from underwater 
sounds generated from pile driving and removal. Potential takes could 
occur if individuals of these species are present in zones ensonified 
above the thresholds for Level A or Level B harassment identified above 
when these activities are underway.
    Take by Level A and Level B harassment would be due to potential 
behavioral disturbance, temporary threshold shift (TTS) and PTS. No 
serious injury or mortality is anticipated or authorized given the 
nature of the activity and measures designed to minimize the 
possibility of injury to marine mammals. Take by Level A harassment is 
only anticipated for harbor porpoise and harbor seal. The potential for 
harassment is minimized through the construction method and the 
implementation of the planned mitigation measures (see Mitigation 
section).
    Based on reports in the literature as well as monitoring from other 
similar activities, behavioral disturbance (i.e., Level B harassment) 
would 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; HDR, Inc., 2012; Lerma, 
2014). Most likely for pile driving, individuals would 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 in Washington, which 
have taken place with no observed severe responses of any individuals 
or known long-term adverse consequences. The impact of Level B 
harassment takes on the affected individuals would 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. Vibratory 
driving associated with the planned project may produce sound at 
distances of up to six kilometers from the project site, thus 
overlapping with some likely less-disturbed habitat (such as the Cherry 
Point Aquatic Reserve). The project site itself is frequented by large 
tankers every few days but the majority of sound fields produced by the 
specified activities are relatively close to the Pier. Animals 
disturbed by project sound would be expected to avoid the area and use 
nearby higher-quality habitats.
    In addition to the expected effects resulting from authorized Level 
B harassment, we anticipate that harbor porpoises and harbor seals may 
sustain some limited Level A harassment in the form of auditory injury 
of low severity. However, animals in these locations 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 energy produced by pile driving, i.e. the low-
frequency region below 2 kHz, not severe hearing impairment or 
impairment in the regions of greatest hearing sensitivity. Harbor 
porpoises are high-frequency cetaceans while the hearing ability of 
harbor seal below 2 kHz is also poor (NMFS, 2018).
    If hearing impairment occurs, it is most likely that the affected 
animal would lose a few decibels 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 
marine mammals would be likely to move away from a sound source that 
represents an aversive stimulus, especially at levels that would be 
expected to result in PTS, given sufficient notice through use of soft 
start.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat. The project activities 
would not modify existing marine mammal habitat for a significant 
amount of time. The activities may cause some fish or invertebrates to 
leave the area of disturbance, thus temporarily impacting marine 
mammals' foraging opportunities in a limited portion of the foraging 
range; but, because of the intermittent driving schedule (17 in-water 
work days between August 1 and October 31, 2024); short duration of the 
activities (no more than 3 hours per day combined impact and vibratory 
driving); the relatively small area of the habitat that may be 
affected; and the availability of nearby habitat of similar or higher 
value, the impacts to marine mammal habitat are not expected to cause 
significant or long-term negative consequences.
    While there are haulouts for pinnipeds in the area, these locations 
are some distance from the actual project site. There are two 
documented California sea lion haulouts in the southern Strait of 
Georgia, both on the western coast of the Strait in British Columbia. 
The closest haulout in near Tumbo Island on the eastern edge of the 
Gulf Island, over 15 miles (24.12 kilometers (km)) from the project 
site. The closest documented Steller sea lion haulout location is over 
10 miles (16.1 km) from the project site, on Sucia Island (Jeffries et 
al., 2000). The closest documented harbor seal haulouts are two 
different low population (100 individuals) locations approximately 5 
miles (3.1 km) from the project site, one to the north and one to the 
south (Jeffries et al., 2000). To the southwest and west of the project 
location are 14 other haulouts dotted throughout a few of the small 
northern San Juan Islands (North of Orcas Island) within 10 miles 
(16.1) km) of the project (Jeffries et al., 2000).
    While repeated exposures of individuals to this pile driving 
activity could cause limited Level A harassment in harbor seals and 
harbor porpoises and Level B harassment in these two species in 
addition to sea lions, they are unlikely to considerably disrupt 
foraging behavior or result in significant decrease in fitness, 
reproduction, or survival for the affected individuals.
    In summary and as described above, the following factors primarily 
support our determination that the impacts resulting from this activity 
are not expected to adversely affect any of the species or stocks 
through effects on annual rates of recruitment or survival:
    <bullet> No serious injury or mortality is anticipated or 
authorized;
    <bullet> Any Level A harassment exposures (i.e., to harbor porpoise 
and harbor seals, only) are anticipated to result in slight PTS (i.e., 
of a few decibels), within the lower frequencies associated with pile 
driving;
    <bullet> The anticipated incidents of Level B harassment would 
consist of, at worst, temporary modifications in behavior that would 
not result in fitness impacts to individuals;
    <bullet> The ensonifed areas from the project is very small 
relative to the overall habitat ranges of all species and stocks;
    <bullet> Repeated exposures of pinnipeds to this pile driving 
activity could cause slight Level A harassment in seals and harbor 
porpoise and Level B harassment in seals, harbor porpoise and sea lion 
species, but are unlikely to considerably disrupt foraging behavior or 
result in significant decrease in fitness,

[[Page 73392]]

reproduction, or survival for the affected individuals. In all, there 
would be no adverse impacts to the stocks as a whole; and
    <bullet> The mitigation measures are expected to reduce the effects 
of the specified activity to the level of least practicable adverse 
impact.
    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 required monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
the planned activity will have a negligible impact on all affected 
marine mammal species or stocks.

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for 
specified activities other than military readiness activities. The MMPA 
does not define small numbers and so, in practice, where estimated 
numbers are available, NMFS compares the number of individuals taken to 
the most appropriate estimation of abundance of the relevant species or 
stock in our determination of whether an authorization is limited to 
small numbers of marine mammals. When the predicted number of 
individuals to be taken is fewer than one-third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    Table 8 demonstrates the number of instances in which individuals 
of a given species could be exposed to received noise levels that could 
cause take of marine mammals. Our analysis shows that less than 6 
percent of all species could be taken by harassment which is below one 
third of the population for all.
    Based on the analysis contained herein of the planned activity 
(including the required mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
marine mammals would be taken relative to the population size of the 
affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

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

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our action (i.e., the issuance of an IHA) with respect 
to potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) of the Companion Manual for NAO 216-6A, which do not 
individually or cumulatively have the potential for significant impacts 
on the quality of the human environment and for which we have not 
identified any extraordinary circumstances that would preclude this 
categorical exclusion. Accordingly, NMFS has determined that the 
issuance of the IHA qualifies to be categorically excluded from further 
NEPA review.

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

Authorization

    NMFS has issued an IHA to Petrogas for the potential harassment of 
small numbers of four marine mammal species incidental to Ferndale Pier 
Maintenance Activities in Ferndale, Washington.

    Dated: September 5, 2024.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2024-20392 Filed 9-9-24; 8:45 am]
BILLING CODE 3510-22-P


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