Federal Register / Vol. 89, No. 219 / Wednesday, November 13, 2024 / Proposed Rules 89543 

(i) Objections must be provided to VA 

in writing. 

(ii) VA’s decision stands while an 

objection is under consideration. 

(iii) Other VA decisions (such as 

competing award decisions, 

continuation award decisions, decisions 

made with the consent of the grantee) 

are not subject to this opportunity to 

object. 

(2) The grant agreement will provide 

additional requirements and 

responsibilities for grantees in the event 

of noncompliance under paragraph (a) 

of this section. 

§ 84.105 Oversight. 

VA may inspect the telehealth access 

points and records of any entity that has 

received a telehealth grant when VA 

deems necessary to determine 

compliance with this part. The authority 

to inspect does not authorize VA to 

manage or control the organization. 

Monitoring and oversight requirements 

for each grantee will be determined by 

a pre-award risk assessment in 

alignment with 2 CFR 200.206. 

§ 84.110 Telehealth grant closeout 

procedures. 

Telehealth grants will be closed out in 

accordance with 2 CFR part 200. 

[FR Doc. 2024–25892 Filed 11–12–24; 8:45 am] 

BILLING CODE 8320–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 76 

[MB Docket No. 23–203; Report No. 3220; 

FR ID 260366] 

Petition for Reconsideration of Action 

in Rulemaking Proceeding; Correction 

AGENCY: Federal Communications 

Commission. 

ACTION: Petition for Reconsideration; 

correction. 

SUMMARY: The Federal Communications 

Commission corrects Dates for the filing 

of replies to oppositions to the Petition 

for Reconsideration, published in the 

Federal Register of November 1, 2024, 

announcing the dates for filing 

oppositions and replies to the Petition 

for Reconsideration of Action. The 

document contained an error in the 

DATES section. 

DATES: November 13, 2024. 

FOR FURTHER INFORMATION CONTACT: For 

further information, please contact 

Joseph Price, Policy Division, Media 

Bureau, at 202–418–1423 or 

Joseph.Price@fcc.gov. 

SUPPLEMENTARY INFORMATION: 

Correction 

In the Federal Register of November 

1, 2024, in FR Doc. 2024–25497, on page 

87322, in the third column, correct the 

DATES caption to read:DATES: 

Oppositions to the Petition must be filed 

on or before November 18, 2024. Replies 

to oppositions to the Petition must be 

filed on or before November 29, 2024. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

[FR Doc. 2024–26213 Filed 11–12–24; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 241104–0288] 

RIN 0648–BN12 

Takes of Marine Mammals Incidental to 

Specified Activities; Taking Marine 

Mammals Incidental to the Lower 

Columbia River Dredged Material 

Management Plan, Oregon and 

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. Army Corps of Engineers, 

for Incidental Take Regulations (ITR) 

and Letter of Authorization (LOA) 

pursuant to the Marine Mammal 

Protection Act. The requested 

regulations would govern the 

authorization of take of small numbers 

of marine mammals over 5 years (2027– 

2032) incidental to the Lower Columbia 

River Dredged Material Management 

Plan in Oregon and Washington. NMFS 

requests public comments and will 

consider them prior to making any final 

decision on the requested ITR and 

issuance of the LOA; agency responses 

to comments will be summarized in the 

final rule, if issued. 

DATES: Comments and information must 

be received no later than December 13, 

2024. 

ADDRESSES: A plain language summary 

of this proposed rule is available at: 

https://www.regulations.gov/docket/ 

NOAA-NMFS-2024-0123. 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

https://www.regulations.gov and enter 

NOAA–NMFS–2024–0123 in the Search 

box (note: copying and pasting the 

FDMS Docket Number directly from this 

document may not yield search results). 

Click on 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 the National Marine 

Fisheries Service (NMFS). All 

comments received are a part of the 

public record and will generally be 

posted for public viewing at: https://

www.regulations.gov without change. 

All personal identifying information 

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

FOR FURTHER INFORMATION CONTACT: 

Robert Pauline, Office of Protected 

Resources, NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: A copy of 

the U.S. Army Corps of Engineers’ 

(USACE) application any 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-us-armycorps-engineers-lower-columbia-riverdredged-material. 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 Marine Mammal 

Protection Act (MMPA) (16 U.S.C. 1361 

et seq.) to authorize, for a 5-year period 

(2027–2032), take of marine mammals 

incidental to the USACE’s construction 

activities associated with the Lower 

Columbia River (LCR) Dredged 

Materials Management Plan (DMMP). 

NMFS received an application (the 

Application) from the USACE 

requesting 5-year regulations and an 

LOA to take 3 species of marine 

mammals. Take would occur by 

harassment only, incidental to impact 

and vibratory pile driving. 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 


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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). No 

mortality or serious injury is anticipated 

or proposed for authorization. 

Legal Authority for the Proposed Action 

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, regulations are promulgated, 

and public notice and an opportunity 

for public comment are provided. 

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 as ‘‘mitigation’’); and 

requirements pertaining to the 

mitigation, monitoring and reporting of 

the takings are set forth. The definitions 

of all applicable MMPA statutory terms 

cited above are included below. 

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

the implementing regulations at 50 CFR 

part 216, subpart I, provide the legal 

basis for proposing and, if appropriate, 

issuing 5-year regulations and an 

associated LOA. This proposed rule also 

establishes required mitigation, 

monitoring, and reporting requirements 

for the USACE’s activities. 

Summary of Major Provisions Within 

the Proposed Rule 

The following is a summary of the 

major provisions of this proposed rule 

regarding USACE 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. 

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 evaluate the 

proposed action (i.e., promulgation of 

regulations and subsequent issuance of 

a 5-year LOA) and alternatives 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 preliminarily determined 

that issuance of the proposed rule 

qualifies to be categorically excluded 

from further NEPA review. 

Information in the USACE 

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 USACE Request 

On October 18, 2023, NMFS received 

an Application from the USACE 

requesting authorization for take of 

marine mammals incidental to 

construction activities associated with 

the LCR DMMP in Oregon and 

Washington. After the applicant 

responded to our questions and 

redrafted the Application, we 

determined the Application was 

adequate and complete on April 25, 

2024. On May 14, 2024, we published 

a notice of receipt of the USACE 

Application in the Federal Register, 

requesting comments and information 

related to the request for 30 days (89 FR 

41941). We received no public 

comments. 

The USACE requests authorization to 

take harbor seal (Phoca vitulina), Steller 

sea lion (Eumetopias jubatus), and 

California sea lion (Zalophus 

californianus) by Level B harassment 

and, for harbor seal only, by Level A 

harassment. The proposed regulations 

would be valid for 5 years (2027–2032). 

Description of Proposed Activity 

Overview 

The USACE has developed a draft 

DMMP to support continued operation 

and maintenance of the LCR Federal 

Navigation Channel (FNC) for the next 

20 years. The full DMMP includes 

proposed dredging and placement 

operations between river miles (mi) 

(RM) 3 and 105.5. However, the scope 

of this request for an LOA is limited to 

potential pile driving that would be 

associated with any new steel and 

timber piles installed between RM 23 

and 36. Work on additional reaches of 

the LCR will likely occur in subsequent 

years. The USACE is anticipating up to 

141 days of in-water work between 

November 2027 and February 2032 and 

is proposing to install 1,039 steel piles 

and 1,029 timber piles by vibratory and 

impact driving over the 5-year LOA 

period for a total of 2,068 piles. No 

concurrent driving of piles is proposed. 

Dates and Duration 

The proposed regulations would be 

valid for a period of 5 years from 

November 1, 2027, through February 29, 

2032. Pile driving is expected to occur 

during the in-water work window of the 

LCR of November 1 through February 

28. An estimated 141 in-water workdays 

would occur during this period, with a 

minimum of 1 day occurring in LOA 

year 2 (November 2028–February 2029) 

and a maximum of 51 days in LOA year 

5 (November 2031–February 2032). The 

USACE estimated the number of inwater workdays based on the 

assumption that an average of 15 piles 

would be installed in a given day. 

However, contractors could install up to 

20 piles in a day under favorable 

conditions, and thus the final total 

number of workdays may be less than 

anticipated. 

Specific Geographic Region 

The LCR flows 146 miles from 

Bonneville Dam to the Pacific Ocean. 

This reach of the river features fish and 

wildlife in the transition from fresh 

water to salt water, passing through 

major cities and towns, flowing through 

wildlife refuges, supporting ports and a 


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shipping channel, and providing valued 

recreation opportunities. The LCR 

features a meandering geometry 

composed of gradual bends with flows 

splitting around in-river islands. Several 

of these in-river islands were expanded 

or created entirely from dredged 

material that was placed to help 

maintain the dimensions of the FNC. 

Work will take place from RM 23 to RM 

36 as shown in figure 1. The project area 

encompasses this section of the river, 

which features widely dispersed 

housing structures separated by 

stretches of undeveloped land to the 

north on the right bank and uninhabited 

islands and sand flats south of the 

navigation channel (hereinafter, the 

Project Area). Traveling from west to 

east these are Rice Island, Miller Sands, 

Snag Island, Pillar Rock Island, Jim 

Crowe Sands, Woody Island, Grassy 

Island, Fitzpatrick Island, and Welch 

Island, which are all part of the Lewis 

and Clark National Wildlife Refuge. 

Tenasillaha Island, which is part of the 

Julia Hanson Butler National Wildlife 

Refuge, is the easternmost island in the 

Project Area. The main navigation 

channel from RM 3 to RM 105.5 must 

be maintained at 48 feet (ft) deep and, 

generally, 600 ft wide. 

Figure 1—Locations of Proposed 

Installation Sites on the Lower 

Columbia River 

Detailed Description of the Specified 

Activity 

There are a number of channel 

maintenance practices utilized by the 

USACE as part of the LCR DMMP. 

Channel deepening and widening 

requires regular maintenance dredging 

to remove shoals that form in the 

navigation channel. The standard of 

maintenance dredging has been to 

dredge material from areas in which 

navigation is affected, and to dispose of 

the dredged material in upland or 

shoreline placement sites or areas of the 

navigation channel where the channel is 

deeper, referred to as ‘‘flow lane 

placement.’’ Dredged materials have 

historically been placed between or 

adjacent to pile dike structures to 

supplement natural accretion of 

sediment. Hopper dredging, clamshell 

dredging, and pipeline dredging are all 

employed for channel deepening and 

widening and are employed as part of 

the DMMP. These operations are 

described in greater detail in the USACE 

Application. NMFS, however, has 

determined that dredging is not likely to 

result in harassment under the MMPA. 

The USACE employs a number of 

river control structures to help maintain 

the dimensions of the FNC. For 

example, placing dredged material along 

the shallow water banks of an existing 

island serves to redirect flow back into 

the main navigation channel and narrow 

the width of the river, which mimics a 

natural scouring process of the riverbed. 

Dredged material has been used to build 

or expand channel training landforms 

such as in-river islands that reduce the 

river’s cross-section and control channel 

alignment to aid in maintaining the 

navigation channel’s dimensions. The 

purpose of reducing the river’s crosssection is to increase and redirect flow 

velocities in localized areas back into 

the navigation channel to create natural 

scouring action. Piles are the most 

common channel training structure in 

the LCR and may or may not be 

associated with in-river islands. Such 

piles can be used along a shoreline, or 

as part of an island and are often 

installed perpendicular to the direction 

of river flow. The pile dike slows the 

velocity of the river along the shoreline 

which reduces erosion and redirects the 

flow such that the velocity of the river 

accelerates towards the navigation 

channel, allowing the river to naturally 

scour the bed and provide stable areas 

for placement of dredged material. 

Existing pile dikes are semi-permeable 

groins consisting of two rows (riverine) 

or three rows (estuary) of untreated 

timber pilings driven on 2.5 foot 

centers. These timber piles are 

alternately placed on each side of 

horizontal spreader piles, which are 

bolted in place. Pile dikes in the FNC 

average about 400 ft with hundreds of 

pilings. Pile dike systems consist of a 

series of timber pile dikes, spaced about 

1,200 to 1,500 ft apart for optimum 

functional efficiency. The outer 

dolphin, known as a king pile, is a taller 

bundle of piles marking the end of the 

pile dike for better visibility for users of 

the channel. The USACE has not built 

any new pile dikes since the 

construction of the 40-ft channel 

(approximately 1969), though some 

existing dikes have been repaired or 

rebuilt. Many pile dikes are presently in 

varying degrees of deterioration. 

Each pile structure will be composed 

of one or more piles. Proposed 

structures are slightly different from 

those typically found throughout the 

LCR. One main difference is that pile 

spacing within structures at confined 

aquatic placement sites needs to be 

smaller to slow river currents and 

prevent newly placed material from 

washing away. Because any pile 

structures would be buried to some 

degree by placed material, they include 


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89546 Federal Register / Vol. 89, No. 219 / Wednesday, November 13, 2024 / Proposed Rules 

only one row of piles that are not 

connected by a horizontal spreader. 

The design of each pile structure is 

tailored to the site conditions. For 

current planning purposes, the pile 

spacing is assumed to increase as you 

move from the shore toward the FNC 

over four segments: 

• Shore to 1⁄3 point of structure 

• 1⁄3 point to 1⁄2 point of structure 

• 1⁄2 point to 3⁄4 point of structure 

• 3⁄4 point to end of structure 

(enrockment only, no piles) 

Steel marker pile at riverward end of 

structure. 

The pile spacing within the first three 

segments depends on whether piles are 

timber or steel. For planning purposes 

(subject to change during the design 

phase), all timber piles are assumed to 

be 12 inches (in) in diameter and all 

steel piles are assumed to be 24 in in 

diameter. These assumptions represent 

maximum pile widths, though smaller 

piles could ultimately be selected 

should more in-depth site assessments 

deem smaller pile widths acceptable. 

The permissible spacing for steel piles 

is twice the spacing of timber piles 

because the diameter of the steel piles 

is twice that of the timber piles. Both 

configurations would result in the same 

porosity. 

The decision on what type of piles 

should be used will be made on a siteby-site basis depending on the site 

conditions (e.g., water depth, currents, 

wave conditions, foundation conditions, 

etc.) along with the availability and cost 

of materials at the time of design and 

construction. Timber piles will most 

likely be installed in areas of shallow 

water with loose/soft to medium dense 

foundation. Steel piles will most likely 

be installed in deep water or in dense/ 

hard foundations. The USACE has 

assumed that one-third of the piles will 

be timber and two-thirds will be steel. 

This conservative assumption ensures 

that sufficient numbers of steel piles 

and associated effects are accounted for 

should hard foundations be more 

prevalent. In the Application, the 

USACE noted that contractors expressed 

difficulties securing timber piles over 

the last 3–5 years. Therefore, this 

assumption also accounts for potential 

supply chain issues affecting the 

availability of timber pilings. 

Table 1 summarizes the spacing 

assumptions for potential pile structures 

used at confined aquatic placement 

sites. For the first 3⁄4 of each structure 

(from the shore), the bottom width of 

the enrockment is assumed to be 50 ft 

(based on a water depth of 30 ft). For the 

outer (riverward) 1⁄4 of each structure, 

the bottom width of the enrockment 

increases to about 100 ft. The average 

width is about 65 ft. However, for site 

W–35.6–IW–D, the two structures will 

be primarily rock with steel marker 

piles; the average bottom width is 

assumed to be 100 ft. 

TABLE 1—PILE SPACING ASSUMPTIONS FOR TIMBER AND STEEL PIPE PILES

Pile dike segment 

Pile spacing for 

12-in timber 

(ft) 

Pile spacing for 

24-in steel pipe 

(ft) 

Shore to 1⁄3 point of structure .................................................................................................................. 1.5 3 1⁄3 point to 1⁄2 point of structure ............................................................................................................... 2.5 5 1⁄2 point to 3⁄4 point of structure ............................................................................................................... 4 8 

For planning purposes and the 

calculations included in this LOA, it is 

assumed that one-third of the piles will 

be timber and two-thirds will be steel. 

Timber piles will most likely be 

installed in areas of shallow water with 

loose/soft to medium dense foundation. 

Steel piles will most likely be installed 

in deep water or in dense/hard 

foundations. This is a conservative 

assumption to ensure sufficient 

numbers of steel piles and associated 

effects are accounted for should hard 

foundations be more prevalent. Prior 

contractors have also expressed 

difficulties securing timber piles over 

the last 3–5 years. Thus, this 

assumption also accounts for potential 

supply chain issues affecting the 

availability of timber pilings. For a 

structure with a total length of L, the 

formulas for computing the number of 

piles are as follows: 

• Timber piles number of piles = 0.351 

× L 

• Steel piles number of piles = 0.176 × 

L 

The total length of proposed 

structures is approximately 13,050 ft. 

However, excluding W–35.6–IW–D 

(only marker piles) and the 2 sites 

beyond the scope of this LOA (W–24.9– 

IW–S and O–26.7–IW–S) the total length 

for estimating the number of piles is 

8,796 ft (table 2). Pile driving at the 2 

out-of-scope locations is tentatively 

planned for 2032/2033 and 2033/2034, 

beyond the effective period of these 

proposed regulations. The assumed 

length of timber pile structures to be 

installed under this LOA is 2,932 ft (i.e., 

one-third of the total length) and the 

assumed length of steel pile structures 

is 5,864 ft (i.e., two-thirds of the total 

length). Using the equations above, the 

anticipated total number of timber piles 

will be 1,029 and the total number of 

steel piles will be 1,032 plus 6 

additional marker piles for site W–35.6– 

IW–D. These total numbers of piles are 

for the 5 placement sites that will 

require pile driving under this LOA (see 

table 2). 

TABLE 2—LOCATION AND PROPERTIES OF PROPOSED PILE STRUCTURES AT CONFINED AQUATIC PLACEMENT SITES

System name Structures 

in system 

Length of 

structure 

(ft) 

Width of 

structure 

(ft) 

Material Anticipated 

LOA year(s) 

O–23.5–BN–ADD2 .......................... 4 1,544 50–100 Piles and enrockment ..................... Year 1. 

W–35.6–IW–D ................................. 2 1,555 100 Enrockment and 6 marker piles ...... Year 2. 

O–23.5–BN–ADD1 .......................... 5 2,119 50–100 Piles and enrockment ..................... Year 3. 

O–27.3–BN ...................................... 3 1,906 50–100 Piles and enrockment ..................... Year 4. 

O–31.4–BN ...................................... 3 3,227 50–100 Piles and enrockment ..................... Year 5. 


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Note that the lower parts of the piles 

will be surrounded by enrockment (also 

referred to as stone or riprap). The 

thickness of the enrockment will be 

about one-third of the water depth in 

terms of low water. The volume of 

enrockment will depend on the 

elevation profile of the riverbed along 

the structure alignment. NMFS, 

however, has determined that 

enrockment installation is not likely to 

result in harassment under the MMPA. 

Table 3 shows the locations, number 

and types of piles, as well as pile 

driving workdays anticipated to be 

required for the DMMP project spanning 

roughly 13 RM. These structures will 

support new confined aquatic 

placement sites in the LCR. 

TABLE 3—IN-WATER WORK, PILE INSTALLATION, AND WORKDAY ASSUMPTIONS

In-water work location 1 Timber 

piles 

Steel pipe 

piles 

Total 

piles 

Anticipated 

pile driving 

workdays 2

LOA YR-1 (Nov. 2027–Feb. 2028) 

Enrockment placement and pile installation to construct 4 structures at Site 

O–23.5–BN–ADD2 ....................................................................................... 181 181 362 25 

LOA YR-2 (Nov. 2028–Feb. 2029) 

Construction of 2 new structures at Site W–35.6–IW–D using enrockment 

and marker piles only 

NA 6 6 1 

LOA YR-3 (Nov. 2029–Feb. 2030) 

Enrockment placement and pile installation to construct 5 structures at Site 

O–23.5–BN–ADD1 ....................................................................................... 248 249 497 34 

LOA YR-4 (Nov. 2030–Feb. 2031) 

Enrockment placement and pile installation to construct 3 structures at Site 

O–27.3–BN ................................................................................................... 223 224 447 30 

LOA YR-5 (Nov. 2031–Feb. 2032) 

Enrockment placement and pile installation to construct 3 structures at Site 

O–31.4–BN ................................................................................................... 377 379 756 51 

Total .......................................................................................................... 1,029 1,038 2,068 141 

1 Reference system name that denotes the side of the channel (i.e., O for Oregon; W for Washington), river mile, type of placement (i.e., BN 

for beach nourishment; IW–S for in-water shallow; IW–D for in-water deeper than 20 ft). 2Though up to 20 piles will be installed in a day, we estimate the total number of workdays based on an average of 15 piles being installed 

per day to account for potential delays due to equipment, weather, and other unforeseen circumstances. 

Proposed mitigation, monitoring, and 

reporting measures are described in 

detail later in this document (see 

Proposed Mitigation and Proposed 

Monitoring and Reporting). 

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) (see 

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 at: https://

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

Table 4 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 

the 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 anticipated 

or proposed to be 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’ U.S. Pacific and Alaska SARs. 

All values presented in table 4 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-assessments. 


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TABLE 4 — MARINE MAMMAL SPECIES 1 LIKELY IMPACTED BY THE SPECIFIED ACTIVITIES

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 2

Stock 

abundance (CV, Nmin, 

most recent abundance 

survey) 3

PBR Annual 

M/SI 4

Order Carnivora—Pinnipedia 

Family Otariidae (eared seals 

and sea lions): 

California Sea Lion ........... Zalophus californianus ........... U.S ......................................... -,-, N 257,606 (N/A, 233,515, 2014) 14,011 >321 

Steller Sea Lion ................ Eumetopias jubatus ................ Eastern ................................... -, -, N 36,308 5 (N/A, 36,308, 2022) 2,178 93.2 

Family Phocidae (earless 

seals): 

.

Harbor Seal ............................. Phoca vitulina ......................... OR/WA Coastal ...................... -, -, N 24,731 6 (1999) ....................... UND 10.6 

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 at: 

https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies. 2ESA 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. 3 NMFS marine mammal SARs online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV 

is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 4These 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. 5 Nest is best estimate of counts, which have not been corrected for animals at sea during abundance surveys. Estimates provided are for the U.S. only. 

6There is no current estimate of abundance available for this stock. Value presented is the most recent available and based on 1999 data. 

As indicated above, all 3 species (with 

3 managed stocks) in table 4 temporally 

and spatially co-occur with the activity 

to the degree that take is reasonably 

likely to occur. 

California Sea Lion 

California sea lions are the most 

frequently sighted sea lion found in 

Washington waters and use haulout 

sites along the outer coast, the Strait of 

Juan de Fuca, and in the Puget Sound. 

The U.S. stock of California sea lions 

breeds on islands off the southern 

California coast. They are commonly 

found in Oregon haul-out sites from 

September to May and during this 

period, adult and subadult males have 

been observed in bays, estuaries, and 

offshore rocks along the Oregon coast. In 

fact, a few males have reported in 

Oregon waters throughout the year 

(Mate 1973). The population breeds in 

the California Channel Islands and most 

females and young pups remain in that 

region year-around (Mate, 1973; Oregon 

Department of Fish and Wildlife 

(ODFW), 2023). California sea lions may 

occur in the project vicinity and often 

use that same haulout sites as Steller sea 

lions (ODFW, 2023, see figure 4–2 in the 

Application). 

Steller Sea Lion 

Steller sea lions that occur in the LCR, 

including the project vicinity, are 

members of the eastern Distinct 

Population Segment (DPS), ranging from 

Southeast Alaska to central California, 

including Washington (Jeffries et al., 

2000; Scordino, 2006; NMFS, 2013). 

Steller sea lions have been detected in 

the LCR and may occur in the vicinity 

of the project. All sea lions detected in 

the LCR are male and the nearest sea 

lion haulout sites are in Astoria and 

upriver near Rainier, Washington 

(USACE, 2024, see figure 4–2 in the 

Application). However, Steller sea lions 

will likely transit the Project Area 

during winter, depending on the timing 

of the eulachon spawning run which 

can attract large numbers of sea lions. 

Harbor Seal 

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 can 

commonly be found on offshore rocks 

and islands, along shores, and on 

exposed flats in the estuary (Harvey, 

1987). Note that the Oregon/Washington 

Coastal Stock was most recently 

estimated at 24,732 harbor seals in 1999 

and more recent abundance data is not 

available. There is no current estimate 

of abundance for this stock (Carretta et 

al., 2022). 

Harbor seals in this population are 

typically non-migratory and reside yearround in the LCR, and generally remain 

in the same area throughout the year for 

breeding and feeding. Harbor seals in 

the LCR do exhibit some seasonal 

movement upriver, including into or 

through the Project Area of 

ensonification, to follow winter and 

spring runs of Pacific eulachon 

(Thaleichthys pacificus) and outmigrating juvenile salmon 

(Oncorhynchus spp.), and they are 

observed regularly in portions of the 

LCR including the Project Area. Within 

the LCR, they tend to congregate to feed 

at the mouths of tributary rivers, 

including the Cowlitz and Kalama rivers 

(RMs 68 and 73, respectively). There are 

several known haul-out sites within 5 of 

the stretch of river (i.e., RM 23 to RM 

36) proposed for new pile driving (see 

figure 4–1 in the Application) and 

highest utilization of these lower river 

sights has typically been observed in 

May/June (Wright and Riemer, 2023). 

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.). Subsequently, NMFS 

(2018, 2024) 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 


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lower bound from Southall et al. (2007) 

retained. 

On May 3, 2024, NMFS published and 

solicited public comment on its draft 

Updated Technical Guidance (89 FR 

36762), which includes updated hearing 

ranges and names for the marine 

mammal hearing groups and is intended 

to replace the 2018 Technical Guidance 

once finalized. The public comment 

period ended on June 17th, 2024. 

Because NMFS may finalize the 

Guidance prior to taking a final agency 

action on this proposed rulemaking, we 

considered both the 2018 and 2024 

Technical Guidance in our effects and 

estimated take analysis below. Marine 

mammal hearing groups and their 

associated hearing ranges from NMFS 

(2018) and NMFS (2024) are provided in 

tables 5 and 6. In the draft Updated 

Technical Guidance, mid-frequency 

cetaceans have been re-classified as 

high-frequency cetaceans, and highfrequency cetaceans have been updated 

to very-high-frequency (VHF) cetaceans. 

Additionally, the draft Updated 

Technical Guidance includes in-air data 

for phocid (PA) and otariid (OA) 

pinnipeds. 

TABLE 5—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). 

TABLE 6—MARINE MAMMAL HEARING GROUPS

[NMFS, 2024] 

Hearing group Generalized hearing 

range * 

Low-frequency (LF) cetaceans (baleen whales) ..................................................................................................................... 7 Hz to 36 kHz. 

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

Very High-frequency (VHF) cetaceans (true porpoises, Kogia, river dolphins, Cephalorhynchid, Lagenorhynchus cruciger 

& L. australis).

200 Hz to 165 kHz. 

Phocid pinnipeds (PW) (underwater) (true seals) ................................................................................................................... 40 Hz to 90 kHz. 

Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) .............................................................................................. 60 Hz to 68 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 may not be as broad. Generalized hearing range chosen based on ∼65 dB threshold from composite audiogram, previous analysis in NMFS 2018, and/or data from Southall et al. (2007); Southall et al. (2019). Additionally, animals are able to detect very loud sounds 

above and below that ‘‘generalized’’ hearing range. 

For more detail concerning these 

groups and associated frequency ranges, 

please see NMFS (2018, 2024) 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 of Marine Mammals 

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 of Marine Mammals 

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. 

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. 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 to 20 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 

activity may be a negligible addition to 

the local environment or could form a 

distinctive signal that may affect marine 

mammals. 


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In-water construction activities 

associated with the project would 

include vibratory pile removal, and 

impact and vibratory pile driving. The 

sounds produced by these activities fall 

into 1 of 2 general sound types: 

impulsive and non-impulsive. 

Impulsive sounds (e.g., explosions, 

gunshots, 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 

(American National Standards Institute 

(ANSI), 1986; National Institute for 

Occupational Safety and Health 

(NIOSH), 1998; ANSI, 2005; NMFS, 

2018). Non-impulsive sounds (e.g., 

aircraft, machinery operations such as 

drilling or dredging, vibratory pile 

driving, 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). 

Impact hammers operate by 

repeatedly dropping a heavy piston onto 

a pile to drive the pile into the substrate. 

Sound generated by impact hammers is 

characterized by rapid rise times and 

high peak levels, a potentially injurious 

combination (Hastings and Popper, 

2005). Vibratory hammers install piles 

by vibrating them and allowing the 

weight of the hammer to push them into 

the sediment. The vibrations produced 

also cause liquefaction of the substrate 

surrounding the pile, enabling the pile 

to be extracted or driven into the ground 

more easily. Vibratory hammers 

produce significantly less sound than 

impact hammers. Peak sound pressure 

levels (SPLs) may be 180 dB or greater 

but are generally 10 to 20 dB lower than 

SPLs generated during 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 

USACE’s proposed activity on marine 

mammals could involve both nonacoustic and acoustic stressors. 

Potential non-acoustic stressors could 

result from the physical presence of the 

equipment and personnel; however, any 

impacts to marine mammals are 

expected to be primarily acoustic in 

nature. Acoustic stressors include 

effects of heavy equipment operation 

during pile installation and removal. 

Acoustic Impacts 

The introduction of anthropogenic 

noise into the aquatic environment from 

pile driving is the primary means by 

which marine mammals may be 

harassed from the proposed activity. 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). In general, 

exposure to pile driving noise has the 

potential to result in an auditory 

threshold shift (TS) 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 noise on marine 

mammals are dependent on several 

factors, including, but not limited to, 

sound type (e.g., impulsive vs. nonimpulsive), the species, age and sex 

class (e.g., adult male vs. mom 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 (TS) followed by 

behavioral effects and potential impacts 

on habitat. 

NMFS defines a noise-induced 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, 2024). The amount of TS is 

customarily expressed in dB. A TS can 

be permanent or temporary. As 

described in NMFS (2018, 2024), 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 nonimpulsive), 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 frequency range of the exposed 

species relative to the signal’s frequency 

spectrum (i.e., how an 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). 

Auditory Injury and Permanent 

Threshold Shift (PTS)—NMFS defines 

auditory injury as ‘‘damage to the inner 

ear that can result in destruction of 

tissue . . . which may or may not result 

in PTS’’ (NMFS, 2024). 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, 2024). PTS does not generally 

affect more than a limited frequency 

range, and an animal that has incurred 

PTS has incurred some level of hearing 

loss at the relevant frequencies; 

typically, animals with PTS are not 

functionally deaf (Au and Hastings, 

2008; Finneran, 2016). Available data 

from humans and other terrestrial 

mammals indicate that a 40-dB 

threshold shift approximates PTS onset 

(see Ward et al., 1958, 1959, 1960; 

Kryter et al., 1966; Miller, 1974; Ahroon 

et al., 1996; Henderson et al., 2008). PTS 

levels for marine mammals are 

estimates, as with the exception of a 

single study unintentionally inducing 

PTS in a harbor seal (Kastak et al., 

2008), there are no empirical data 

measuring PTS in marine mammals 

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)— 

TTS is 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 (Southall et 

al., 2007, 2019), a TTS of 6 dB is 

considered the minimum TS clearly 

larger than any day-to-day or session-tosession variation in a subject’s normal 

hearing ability (Schlundt et al., 2000; 

Finneran et al., 2000, 2002). As 

described in Finneran (2015), 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 


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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 

competing sounds present. 

Alternatively, a larger amount and 

longer duration of TTS sustained during 

a 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. 

Many studies have examined noiseinduced hearing loss in marine 

mammals (see Finneran (2015) and 

Southall et al. (2019) for summaries). 

TTS is the mildest form of hearing 

impairment that can occur during 

exposure to sound (Kryter, 2013). While 

experiencing TTS, the hearing threshold 

rises, and a sound must be at a higher 

level in order to be heard. In terrestrial 

and marine mammals, TTS can last from 

minutes or hours to days (in cases of 

strong TTS). In many cases, hearing 

sensitivity recovers rapidly after 

exposure to the sound ends. For 

pinnipeds in water, measurements of 

TTS are limited to harbor seals, 

elephant seals (Mirounga angustirostris), 

bearded seals (Erignathus barbatus) and 

California sea lions (Kastak et al., 1999, 

2007; Kastelein et al., 2019b, 2019c, 

2021, 2022a, 2022b; Reichmuth et al., 

2019; Sills et al., 2020). These studies 

examined hearing thresholds measured 

in marine mammals before and after 

exposure to intense or long-duration 

sound exposures. The difference 

between the pre-exposure and postexposure thresholds can be used to 

determine the amount of TS at various 

post-exposure times. 

The amount and onset of TTS 

depends on the exposure frequency. 

Sounds at low frequencies, well below 

the region of best sensitivity for a 

species or hearing group, are less 

hazardous than those at higher 

frequencies, near the region of best 

sensitivity (Finneran and Schlundt, 

2013). At low frequencies, onset-TTS 

exposure levels are higher compared to 

those in the region of best sensitivity 

(i.e., a low frequency noise would need 

to be louder to cause TTS onset when 

TTS exposure level is higher), as shown 

for harbor porpoises and harbor seals 

(Kastelein et al., 2019a, 2019c). Note 

that in general, harbor seals have a 

lower TTS onset than other measured 

pinniped species (Finneran, 2015). In 

addition, TTS can accumulate across 

multiple exposures, but the resulting 

TTS will be less than the TTS from a 

single, continuous exposure with the 

same SEL (Mooney et al., 2009; 

Finneran et al., 2010; Kastelein et al., 

2014, 2015). This means that TTS 

predictions based on the total, SELcum

will overestimate the amount of TTS 

from intermittent exposures, such as 

sonars and impulsive sources. 

Nachtigall et al. (2018) describes 

measurements of hearing sensitivity of 

multiple odontocete species (i.e., 

bottlenose dolphin, harbor porpoise, 

beluga, and false killer whale 

(Pseudorca crassidens)) when a 

relatively loud sound was preceded by 

a warning sound. These captive animals 

were shown to reduce hearing 

sensitivity when warned of an 

impending intense sound. Based on 

these experimental observations of 

captive animals, the authors suggest that 

wild animals may dampen their hearing 

during prolonged exposures or if 

conditioned to anticipate intense 

sounds. Additionally, the existing 

marine mammal TTS data come from a 

limited number of individuals within 

these species. 

Relationships between TTS and PTS 

thresholds have not been studied in 

marine mammals, but such 

relationships are assumed to be similar 

to those in humans and other terrestrial 

mammals. PTS typically occurs at 

exposure levels at least several dBs 

above that inducing mild TTS (e.g., a 

40-dB TS approximates PTS onset 

(Kryter et al., 1966; Miller, 1974), while 

a 6-dB TS approximates TTS onset 

(Southall et al., 2007, 2019). Based on 

data from terrestrial mammals, a 

precautionary assumption is that the 

PTS thresholds for impulsive sounds 

(such as impact pile driving pulses as 

received close to the source) are at least 

6 dB higher than the TTS threshold on 

a peak-pressure basis and PTS SELcum

thresholds are 15 to 20 dB higher than 

TTS SELcum thresholds (Southall et al., 

2007, 2019). Given the higher level of 

sound or longer exposure duration 

necessary to cause PTS as compared 

with TTS, it is considerably less likely 

that PTS could occur. 

Installing piles for this project 

requires either impact pile driving or 

vibratory pile driving. For this project, 

these activities would not occur at the 

same time, and there would be pauses 

in activities producing the sound during 

each day. Given these pauses, and that 

many marine mammals are likely 

moving through the ensonified area 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 (e.g., socializing or feeding); 

visible startle response or aggressive 

behavior (e.g., tail/fluke slapping or jaw 

clapping); or avoidance of areas where 

sound sources are located. Pinnipeds 

may increase their haul out 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., 2003; 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 


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industrial sound than most cetaceans. 

Please see appendices B–C of Southall 

et al. (2007) and Gomez et al. (2016) 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 (e.g., Seyle, 1950; 

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. 

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; Hood et al., 

1998; 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 this project 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. 

Airborne Acoustic Effects—Although 

pinnipeds are known to haul out 

regularly on manmade objects, we 

believe that incidents of take resulting 

solely from airborne sound are unlikely 

because there are no known haulouts 

within the immediate project vicinity on 

the LCR. There is a possibility that an 

animal could surface in-water, but with 

head out, within the area in which 

airborne sound exceeds relevant 

thresholds and thereby be exposed to 

levels of airborne sound that we 

associate with harassment, but any such 

occurrence would likely be accounted 

for in our estimation of incidental take 

from underwater sound. Therefore, 

authorization of incidental take 

resulting from airborne sound for 

pinnipeds is not warranted, and 

airborne sound is not discussed further 

here. 

Marine Mammal Habitat Effects 

The USACE’s construction activities 

could have localized, temporary impacts 

on marine mammal habitat by 

increasing in-water SPLs and slightly 

decreasing water quality. No net habitat 

loss is expected, as the dock will be 

reconstructed within its original 

footprint. Construction activities are 

localized and would likely have 

temporary impacts on marine mammal 

habitat through increases in underwater 

sounds. Increased noise levels may 

affect acoustic habitat (see masking 

discussion above) and adversely affect 

marine mammal prey in the vicinity of 

the Project Area (see discussion below). 

During pile driving activities, elevated 

levels of underwater noise would 

ensonify the Project Area where both 

fishes and marine mammals may 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 


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expected to result in long-term effects to 

the individuals or populations. 

Temporary and localized reduction in 

water quality would occur because of 

in-water construction activities as well. 

Most of this effect would occur during 

the installation and removal of piles 

when bottom sediments are disturbed. 

The installation of piles would disturb 

bottom sediments and may cause a 

temporary increase in suspended 

sediment in the Project Area. In general, 

turbidity associated with pile 

installation is localized to about 25-ft 

(7.6-m) radius around the pile (Everitt et 

al., 1980). Pinnipeds are not expected to 

be close enough to the pile driving areas 

to experience effects of turbidity and 

could avoid localized areas of turbidity. 

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 proposed activities would not 

result in permanent impacts to habitats 

used directly by marine mammals. The 

total riverbed area affected by pile 

installation and removal is a very small 

area compared to the vast foraging area 

available to marine mammals in the LCR 

and Washington’s outer coast and 

contains no habitat areas of particular 

importance. Pile installation may have 

impacts on benthic invertebrate species 

primarily associated with disturbance of 

sediments that may cover or displace 

some invertebrates. The impacts would 

be temporary and highly localized, and 

no habitat would be permanently 

displaced by construction. Therefore, it 

is not expected to have impacts on 

foraging opportunities for marine 

mammals. 

It is possible that avoidance by 

potential prey (i.e., fish) in the 

immediate area may occur due to 

temporary loss of this foraging habitat. 

The duration of fish avoidance of this 

area after pile driving stops is unknown, 

but we anticipate a rapid return to 

normal recruitment, distribution and 

behavior. Any behavioral avoidance by 

fish of the disturbed area would still 

leave large areas of fish and marine 

mammal foraging habitat in the nearby 

vicinity in the in the Project Area and 

LCR. 

Effects on Potential Prey 

Sound may affect marine mammals 

through impacts on the abundance, 

behavior, or distribution of prey species 

(i.e., fish). Marine mammal prey varies 

by species, season, and location. Here, 

we describe studies regarding the effects 

of noise on known marine mammal 

prey. 

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 et al., 1999; Fay, 2009). 

Depending on their hearing anatomy 

and peripheral sensory structures, 

which vary among species, fish 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 fish 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 fish may include 

behavioral responses, hearing damage, 

barotrauma (i.e., 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, although 

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; Santulli et al., 1999; Paxton et al., 

2017). 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; Cott et al., 2012). 

SPLs of sufficient strength have been 

known to cause injury to fish and fish 

mortality (summarized in Popper et al., 

2014). 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. (2012b) showed that a TTS of 4 to 

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., 

2012a; Casper et al., 2013, 2017). 

Fish populations in the proposed 

Project Area that serve as marine 

mammal prey could be temporarily 

affected by noise from pile installation 

and removal. The frequency range in 

which fishes generally perceive 

underwater sounds is 50 to 2,000 Hertz 

(Hz), with peak sensitivities below 800 

Hz (Popper and Hastings, 2009). Fish 

behavior or distribution may change, 

especially with strong and/or 

intermittent sounds that could harm 

fishes. High underwater SPLs have been 

documented to alter behavior, cause 

hearing loss, and injure or kill 

individual fish by causing serious 

internal injury (Hastings and Popper, 

2005). 

The greatest potential impact to fishes 

during construction would occur during 

impact pile driving. However, the 

duration of impact pile driving would 

be limited to the final stage of 

installation (‘‘proofing’’) after the pile 

has been driven as close as practicable 

to the design depth with a vibratory 

driver. In-water construction activities 

would only occur during daylight hours, 

allowing fish to forage and transit the 

Project Area in the evening. Vibratory 

pile driving could elicit behavioral 

reactions from fishes such as temporary 

avoidance of the area but is unlikely to 

cause injuries to fishes or have 

persistent effects on local fish 

populations. Additionally, all pile 

installation would occur only during the 

USACE’s and United States Fish and 

Wildlife Service designated in-water 

work window to minimize potential 

exposure of ESA-listed fish species 

migrating through the project site to 

noise from impact pile driving. 

Construction also would have minimal 

permanent and temporary impacts on 

benthic invertebrate species, a marine 

mammal prey source. 

The area impacted by the project is 

relatively small compared to the 

available habitat in the remainder of the 

LCR, and there are no areas of particular 

importance that would be impacted by 

this project. 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. As described in the 

preceding, the potential for the USACE’s 

construction to affect the availability of 


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prey to marine mammals or to 

meaningfully impact the quality of 

physical or acoustic habitat is 

considered to be insignificant. 

Estimated Take of Marine Mammals 

This section provides an estimate of 

the number of incidental takes proposed 

for authorization through this proposed 

rule, which will inform NMFS’ 

consideration of ‘‘small numbers,’’ the 

negligible impact determinations, and 

impacts on subsistence uses. 

Harassment, defined previously in the 

Purpose and Need for Regulatory Action 

section, is the only type of take expected 

to result from these activities. 

Authorized takes would primarily be 

by Level B harassment, as use of the 

acoustic source (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 

phocids because predicted auditory 

injury zones are larger than for otariids. 

Auditory injury is unlikely to occur for 

otariids. 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. We describe how the proposed 

take numbers are estimated below. 

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 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. Generally speaking, 

Level B harassment take estimates based 

on these behavioral harassment 

thresholds are expected to include any 

likely takes by TTS as, in most cases, 

the likelihood of TTS occurs at 

distances from the source less than 

those at which behavioral harassment is 

likely. TTS of a sufficient degree can 

manifest as behavioral harassment, as 

reduced hearing sensitivity and the 

potential reduced opportunities to 

detect important signals (e.g., 

conspecific communication, predators, 

prey) may result in changes in behavior 

patterns that would not otherwise occur. 

The USACE’s proposed activity 

includes the use of continuous 

(vibratory pile driving) and impulsive 

(impact pile driving) 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; 

NMFS, 2018) and the draft Updated 

Technical Guidance (NMFS, 2024) 

identify 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). This proposed rule 

estimates Level A harassment using the 

existing Technical Guidance (NMFS, 

2018) as well as the draft Updated 

Technical Guidance (NMFS, 2024) 

because at the time of the final agency 

decision on this request for incidental 

take, it’s possible NMFS may have made 

a final agency decision on the draft 

Guidance. 

These thresholds are provided in 

tables 7 and 8 below. The references, 

analysis, and methodology used in the 

development of the thresholds are 

described in NMFS’ 2018 Technical 

Guidance and NMFS’ 2024 draft 

Updated Technical Guidance, both of 

which may be accessed at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance. 

The USACE’s proposed activity 

includes the use of impulsive (impact 

pile driving) and non-impulsive 

(vibratory driving) sources. 

TABLE 7—NMFS’ 2018 THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT (PTS) 

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. 


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TABLE 7—NMFS’ 2018 THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT (PTS)—Continued 

Hearing group 

PTS onset acoustic thresholds * 

(received level) 

Impulsive Non-impulsive 

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 SPL thresholds associated with impulsive sounds, these thresholds should also be considered. 

Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and SELcum 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 NMFS’ 2018 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 SELcum

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 SELcum 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. 

TABLE 8—NMFS’ 2024 THRESHOLDS IDENTIFYING THE ONSET OF AUDITORY INJURY (AUD INJ) 

Hearing group 

AUD INJ acoustic thresholds * 

(received level) 

Impulsive Non-impulsive 

Underwater 

Low-Frequency (LF) Cetaceans ..................................... Cell 1: Lp,0-pk,flat: 222 dB; LE,p, LF,24h: 183 dB ............... Cell 2: LE,p, LF,24h: 197 dB. 

High-Frequency (HF) Cetaceans .................................... Cell 3: Lp,0-pk,flat: 230 dB; LE,p, HF,24h: 193 dB ............... Cell 4: LE,p, HF,24h: 201 dB. 

Very High-Frequency (VHF) Cetaceans ......................... Cell 5: Lp,0-pk,flat: 202 dB; LE,p,VHF,24h: 159 dB .............. Cell 6: LE,p, VHF,24h: 181 dB. 

Phocid Pinnipeds (PW) (Underwater) ............................. Cell 7: Lp,0-pk.flat: 223 dB; LE,p,PW,24h: 183 dB ............... Cell 8: LE,p,PW,24h: 195 dB. 

Otariid Pinnipeds (OW) (Underwater) ............................. Cell 9: Lp,0-pk,flat: 230 dB; LE,p,OW,24h: 185 dB ............... Cell 10: LE,p,OW,24h: 199 dB. 

In–Air 

Phocid Pinnipeds (PA) (In-Air) ........................................ Cell 11: Lp,0-pk.flat: 162 dB; LE,p,PA,24h: 140 dB .............. Cell 12: LE,p,PA,24h: 154 dB. 

Otariid Pinnipeds (OA) (In-Air) ........................................ Cell 13: Lp,0-pk,flat: 177 dB; LE,p,OA,24h: 163 dB .............. Cell 14: LE,p,OA,24h: 177 dB. 

* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating AUD INJ 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 NMFS’ 2018 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 

This section describes the 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 

proposed project. Pile driving generates 

underwater noise that can potentially 

result in disturbance to marine 

mammals in the Project Area. The 

maximum (underwater) area ensonified 

is determined by the topography of the 

LCR, including intersecting land masses 

that will reduce the overall area of 

potential impact. Additionally, vessel 

traffic in the LCR during construction 

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 × 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. 

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 (freefield) 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×log10[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×log10[range]). A practical 

spreading value of 15 is often used 


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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 (table 9). 

Generally, we choose source levels from 

similar pile types from locations (e.g., 

geology, bathymetry) similar to the 

project. 

TABLE 9—PROXY SOUND SOURCE LEVELS FOR PILE SIZES AND DRIVING METHODS

24-in Steel Pipe 1 Vibratory (unattenuated) ........................................................................... ........................... 159 dBRMS.

24-in Steel Pipe 1 3 Impact (attenuated) ................................................................................. 198 dBPEAK ...... 185 dBRMS ....... 171 dBSEL. 

12-in Timber 2 Vibratory (unattenuated) ................................................................................ ........................... 162 dBRMS.

12-in Timber 2 3 Impact (attenuated) ...................................................................................... 175 dBPEAK ...... 165 dBRMS ....... 155 dBSEL. 

1 Reference levels based on the Sand Island Test Piles project in the Columbia River (Robert Miner Dynamic Testing 2021). While the original 

study tested various pile tips for driving through existing enrockment, the DMMP will not use pile tips so we referenced sound levels solely for 

piles excluding tips during vibratory driving. For impact driving, all piles in the Sand Island study included tips so we used the average SPLs 

across all piles as a conservative estimate. 2All timber pile assumptions are based on Caltrans (2020). 

3We assume bubble curtains will be employed for all piles installed with an impact hammer under this LOA, thus, SPLs in this table reflect reference noise estimates reduced by 5 dB. 

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, the optional 

User Spreadsheet tool offers the best 

way to estimate isopleth distances when 

more sophisticated modeling methods 

are not available or practical. For 

stationary sources such as pile 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. 

Inputs used in the optional User 

Spreadsheet tool, and the resulting 

estimated isopleths, are reported in 

table 10 below. The calculated Level A 

and Level B harassment isopleths are 

shown in table 11 and table 12. 

TABLE 10—NMFS USER SPREADSHEET INPUTS

Pile size and type Spreadsheet tab used 

Weighting 

factor 

adjustment 

(kHz) 

Number of 

piles per 

day 

Duration to 

drive a single 

pile 

(min) 

Number of 

strikes per 

pile 

Vibratory pile driving and removal 

24-in steel pile (Vibratory) ...................... A.1) Vibratory pile driving ....................... 2.5 20 25 NA 

12-in Timber (Vibratory) .......................... A.1) Vibratory pile driving ....................... 2.5 20 25 NA 

Impact pile driving 

24-in steel pile (Impact attenuated) ........ E.1) Impact pile driving ........................... 2 20 NA 45 

12-in Timber (Impact attenuated) ........... E.1) Impact pile driving ........................... 2 20 NA 45 

TABLE 11—CALCULATED DISTANCE OF LEVEL A (BASED ON NMFS’ 2018 TECHNICAL GUIDANCE) AND LEVEL B 

HARASSMENT BY PILE TYPE AND PILE DRIVING METHOD

Pile size and type 

Level A harassment (m) Level B 

harassment 

Phocid Otariid (m) 

Vibratory pile driving 

24-in steel pile ............................................................................................................................. 12.63 0.9 3,981.1 

12-in timber pile ........................................................................................................................... 19.9 1.4 6,309.6 

Impact pile driving 

24-in steel pile ............................................................................................................................. 79.0 5.7 464.2 

12-in timber pile ........................................................................................................................... 6.8 0.5 21.5 


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TABLE 12—CALCULATED DISTANCE OF LEVEL A (BASED ON NMFS’ PROPOSED 2024 UPDATE TO THE 2018 TECHNICAL

GUIDANCE) AND LEVEL B HARASSMENT BY PILE TYPE AND PILE DRIVING METHOD

Pile size and type 

Level A harassment (m) Level B 

harassment 

Phocid Otariid (m) 

Vibratory pile driving 

24-in steel pile ............................................................................................................................. 35.9 12.1 3,981.1 

12-in timber pile ........................................................................................................................... 56.9 19.1 6,309.6 

Impact pile driving 

24-in steel pile ............................................................................................................................. 130.6 48.7 464.2 

12-in timber pile ........................................................................................................................... 11.2 4.2 21.5 

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 and describe how 

the information provided is synthesized 

to produce a quantitative estimate of the 

take that is reasonably likely to occur 

and proposed for authorization. The 

USACE referenced data provided by the 

Oregon Department of Fish and Wildlife 

(ODFW) and the Washington 

Department of Fish and Wildlife 

(WDFW) to support assumptions 

regarding marine mammal occurrence in 

the Project Area. The ODFW conducts 

periodic counts of pinnipeds at haul out 

sites along the Oregon coast and in the 

LCR. The WDFW has collected recent 

anecdotal evidence of pinniped 

abundance at haul out sites in the LCR 

near the confluence of the Cowlitz River 

at RM 67.5. While the confluence of the 

two rivers is located approximately 31.5 

river miles upstream from the Project 

Area, it is the closest site that features 

data on pinniped activity. The USACE 

used the proximal count estimates from 

ODFW and WDFW to estimate the 

number of harbor seals, Steller sea lions, 

and California sea lions that could 

transit or occupy the Project Area 

during proposed pile driving in winter 

(i.e., November through February). For 

sea lions, the USACE estimated the 

maximum number of animals likely to 

be encountered in a single day based on 

the maximum number of animals 

detected at haul out sites within 5- of 

proposed pile driving, as well as the 

closest haul out sites upstream or 

downstream. For harbor seals, the 

USACE estimated the harbor seal 

density using the approximate span of 

river where they have been observed at 

haul out sites. 

Harbor Seal 

The most recent harbor seal aerial 

surveys were conducted by ODFW 

during the 2021 summer pupping 

season. The average, maximum daily 

count of harbor seals counted across all 

haulout sites in the project vicinity in 

May and June was 837 (pups and nonpups combined) (USACE, 2024). After 

applying the Huber et al. (2001) 

correction factor of 1.53, used to 

account for likely imperfect detection 

during surveys, the adjusted number of 

harbor seals that may have been present 

during the 2021 surveys was 1,281 

individuals. However, that estimate is 

not necessarily representative of the 

number of harbor seals that may be 

present in winter. 

Jeffries et al. (1984) synthesized 

survey data collected by the state of 

Washington to document pinniped 

abundance and distribution in the LCR 

between 1980 and 1983. Table 13 

summarizes the harbor seal count by 

month detected over that roughly 3-year 

study period (Jeffries et al., 1984). The 

USACE used this data to calculate the 

average, maximum total count observed 

across all haulout sites in the project 

vicinity to estimate the proportion of 

animals present from November through 

February relative to counts observed 

from May to June. The average harbor 

seal count observed between November 

and February was approximately 618 

animals, whereas the average count for 

May and June was roughly 464. The 

count of harbor seals in winter was 1.33 

times the number counted in May and 

June. To account for this seasonality, the 

most recent estimate of 1,281 harbor 

seals in the project vicinity during the 

pupping season, based on ODFW 

counts, could equate to a maximum of 

1,706 harbor seals in the project vicinity 

each day in winter. While the USACE 

and NMFS acknowledge that the 

seasonal correction factor is based on 

data that is over 40 years old, all recent 

surveys have focused solely on the 

summer pupping season and there is no 

winter data corresponding to those 

counts. Therefore, the USACE, with 

NMFS’ concurrence, relied on available 

data from a historic study that included 

counts for multiple seasons in the same 

year. 

The USACE assumed the maximum 

winter abundance of 1,706 individuals 

and an even distribution of animals 

throughout the span of river between 

the river mouth and the upstream end 

of Tenasillahe Island (figure 6–21 in the 

Application). The hatched area in the 

figure is roughly 377 square kilometers 

(km2) which yielded an approximate 

daily harbor seal density of 5 

individuals per km2 in the Project Area. 

The calculated take by Level A 

harassment is likely an overestimate 

because the likelihood of a harbor seal 

coming within a specified Level A 

harassment isopleth of the pile and 

remaining long enough to experience 

PTS during the brief period of potential 

impact driving that could be needed to 

reach the last ∼5 ft of embedment depth 

is fairly low. In addition, the USACE 

utilized the Level A harassment isopleth 

area of the longest pile dike at each site, 

when in actuality, some sites have 

shorter structures, and a pile dike is 

composed of multiple individual piles 

with much smaller noise isopleths. 


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TABLE 13—MAXIMUM MONTHLY COUNTS OF HARBOR SEALS DETECTED DURING LOW-TIDE AERIAL SURVEYS AT HAULOUT

LOCATIONS IN THE LOWER COLUMBIA RIVER ESTUARY BETWEEN 1980 AND 1983 

[Adapted from Jeffries et al., 1984] 

Month South Jetty Baker Bay Desdemona 

Sands 

Taylor 

Sands Grays Bay Miller Sands 

Green 

Island 

N of 

Woody 

Island 

Total 

January ..................... 0 0 566 444 1 381 0 72 1,464 

February .................... 0 NS NS NS NS * 200 NS 55 255 

March ........................ 1 0 * 650 548 0 82 0 3 1,284 

April ........................... 0 * 20 884 260 * 20 137 0 18 1,339 

May ........................... 0 1 568 4 4 0 16 0 593 

June .......................... 1 0 273 22 11 1 * 26 * 0 334 

July ............................ 0 0 525 21 10 0 38 0 594 

August ....................... 3 7 378 0 0 32 35 0 455 

September ................ 4 11 563 7 12 0 26 0 623 

October ..................... 0 * 25 223 59 0 6 0 0 313 

November ................. NS NS * 230 NS NS NS NS NS 230 

December ................. 0 0 301 174 0 46 0 0 521 

NS = Not Surveyed. 

* Count based on visual estimate from airplane, boat, or jetty. 

For harbor seals only, take by Level A 

and Level B harassment was calculated 

based on the following equations, which 

were performed for Level A and Level 

B harassment and for steel and timber 

piles: 

Harassment = Harbor seal density * 

ensonified area * pile driving 

workdays 

The estimated isopleth areas 

associated with the longest pile dike at 

each site are presented in table 14. 

These inputs were used in the equation 

above to estimate the number of harbor 

seals possible within those isopleths 

each day (table 15) and then calculate 

the overall level of take based on the 

number of workdays projected in each 

year (table 16). The number of takes 

requested by Level A and Level B 

harassment by the USACE for Year 1 

through Year 5 are shown in table 16. 

NMFS concurs with this assessment and 

is proposing to authorize harbor seal 

take according to the totals contained in 

table 16. 

TABLE 14—PILE DIKE LENGTHS (m) AND CORRESPONDING LEVEL A AND LEVEL B HARASSMENT AREAS (KM2) 

Site Pile dike length 

(m) 

Phocids level A 

(km2) 24-in Steel 

Impact 

All Marine 

Mammals level 

B (km2) 24-in 

steel impact 

All Marine 

Mammals level 

B (km2) 24-in 

steel vibratory 

All Marine 

Mammals level 

B (km2) 12-in 

timber vibratory 

O–23.5–BN–ADD1 ................................................ 22.40 ................ 0.213 0.74 37.29 81.45 

O–23.5–BN–ADD2 ................................................ 25.00 ................ 0.180 0.58 18.06 30.79 

O–27.3–BN ........................................................... 27.86 ................ 0.162 0.68 13.52 22.97 

O–31.4–BN ........................................................... 31.46 ................ 0.293 1.05 17.97 26.33 

O–35.6–IW–D ....................................................... 35.41 ................ 0.135 0.63 10.70 16.51 

TABLE 15—ESTIMATED HARBOR SEALS IN LEVEL A AND LEVEL B HARASSMENT ZONES PER DAY

Site Installation timeframe 

HS * in Level A 

isopleth area 

24-in steel impact 

HS in Level B 

isopleth area 

24-in steel 

impact 

HS in Level B 

isopleth area 

24-in steel 

vibratory 

HS in Level B 

isopleth area 

12-in timber 

vibratory 

O–23.5–BN- ADD1 ............................................... LOA YR–3 ........ 2 4 187 408 

O–23.5–BN- ADD2 ............................................... LOA YR–1 ........ 1 3 91 154 

O–27.3–BN ........................................................... LOA YR–4 ........ 1 4 68 115 

O–31.4–BN ........................................................... LOA YR–5 ........ 2 6 90 132 

O–35.6–IW–D ....................................................... LOA YR–2 ........ 1 4 54 83 

TABLE 16—CALCULATED LEVEL A AND LEVEL B HARASSMENT TAKE FOR HARBOR SEALS DURING PILE DRIVING

ACTIVITIES EACH YEAR

Site 

Steel pile 

driving 

workdays 

Timber pile 

driving 

workdays 

Level A 

(steel piles) 

Level B 

(steel piles) 

Level B 

(timber piles) 

YR–1 .................... O–23.5–BN–ADD2 ............................ 13 12 26 2,405 4,896 

YR–2 .................... O–35.6–IW–D .................................... 1 0 1 90 0 

YR–3 .................... O–23.5–BN–ADD1 ............................ 17 17 17 1,139 1,955 

YR–4 .................... O–27.3–BN ........................................ 15 15 30 1,320 1,980 

YR–5 .................... O–31.4–BN ........................................ 26 25 26 1,378 2,075 


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California and Steller Sea Lions 

Take estimates for California and 

Steller sea lions were based on assumed 

daily abundances in the Project Area 

rather than the estimated densities. The 

ODFW counted sea lions during recent 

aerial surveys of three key haulout 

locations in the LCR. All sea lions 

detected in winter are non-pup males 

and average counts of both California 

and Steller sea lions observed during 

surveys between 2019 and 2022 are 

shown in table 17. The haulout at East 

Mooring Basin (EMB) is just south of the 

Project Area and likely downstream of 

pile driving harassment isopleths. The 

USACE used the average counts 

observed at EMB (RM 15 from there) as 

a proxy for sea lions that may be present 

during pile driving and used the average 

across all winter months as a proxy for 

the number of sea lions in the Project 

Area since that haulout is closer to the 

Project Area (RM 23 to RM 36) 

compared to the Rainer (RM 67) and 

Coffin Rock (RM 72) locations. Based on 

counts of sea lions at the EMB site (table 

17), the USACE estimated 182 California 

sea lions and 3 Steller sea lions by Level 

B harassment per day in the project 

vicinity. Level A harassment is not 

likely since the Level A harassment 

zones for otariids are smaller than the 

shutdown zone proposed (15–20 m) for 

all pile driving scenarios as shown in 

table 12, and no such take is proposed 

for authorization. 

TABLE 17—AVERAGE COUNTS OF CALIFORNIA AND STELLER SEA LIONS DETECTED AT HAULOUT LOCATIONS DEPICTED IN

FIGURE 4–2 DURING ODFW WINTER AERIAL SURVEYS, 2019–2022 

[USACE, 2024] 

Haulout site Month Average of CSL Average of SSL 

East Mooring Basin (EMB) ................................................................ November .................................... 128 0 

December .................................... 234 3 

January ........................................ 166 4 

February ...................................... 197 5 

Take estimates for California and 

Steller sea lions were calculated based 

on the equation below and number of 

workdays shown in table 18: 

Level B exposure = N animals/day * 

total driving days 

There could be 25 total days of noise 

exposure from pile driving during year 

1 (YR–1); 34 days in YR–3; 30 days in 

YR–4, and up to 51 days in YR–5. 

TABLE 18—PROPOSED TAKE BY LEVEL B HARASSMENT FOR CALIFORNIA AND STELLER SEA LIONS LIKELY TO BE IN THE

PROJECT VICINITY

Total pile driving 

Workdays 

Level B harassment 

CSL 

Level B harassment 

SSL 

YR–1 ........................................................................................................ 25 4,550 75 

YR–2 ........................................................................................................ 1 182 3 

YR–3 ........................................................................................................ 34 6,188 102 

YR–4 ........................................................................................................ 30 5,460 90 

YR–5 ........................................................................................................ 51 9,282 153 

The annual and total number of takes 

of marine mammal species requested by 

the USACE and proposed for authorization by NMFS are shown in 

table 19. 


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TABLE 19—PROPOSED

TAKES BY

LEVEL A HARASSMENT AND

LEVEL B HARASSMENT

ANNUALLY

OVER 5 YEARS

Species Stock 

Yr 1 Yr 2 Yr 3 Yr 4 Yr 5 5-Yr total 

Level A Level B Level A Level B Level A Level B Level A Level B Level A Level B Level A Level B 

Harbor Seal ................................ OR/WA Coastal ......................... 26 7,301 1 90 17 3,094 30 3,300 26 3,453 87 17,238 California sea lion ....................... U.S ............................................. ................ 4,550 ................ 182 ................ 6,188 ................ 5,460 ................ 9,282 ................ 25,662 Steller sea lion ............................ Eastern ....................................... ................ 75 ................ 3 ................ 102 ................ 90 ................ 153 ................ 423 


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To inform both the negligible impact 

analysis and the small numbers 

determination, NMFS assesses the 

maximum number of takes of marine 

mammals that could occur within any 

given year during the effective LOA 

period. In this calculation, the 

maximum estimated number of Level A 

harassment takes in any one year is 

summed with the maximum estimated 

number of Level B harassment takes in 

any 1 year for each species to yield the 

highest number of estimated take that 

could occur in any year (table 20). Table 

20 also depicts the number of takes 

proposed relative to the abundance of 

each stock. 

TABLE 20—MAXIMUM NUMBER OF PROPOSED TAKES (BY LEVEL A HARASSMENT AND LEVEL B HARASSMENT) THAT

COULD OCCUR IN ANY ONE YEAR OF THE PROJECT RELATIVE TO STOCK POPULATION SIZE

Species NMFS stock 

abundance 

Maximum 

Level A 

harassment 

Maximum 

Level B 

harassment 

Maximum 

annual take 1

Total percent 

stock taken 

based on 

maximum 

annual take 

Harbor seal ...................................................................... 2 24,732 30 7,301 7,331 29.6 

California sea lion ............................................................ 257,606 ........................ 9,282 9,282 3.6 

Steller sea lion ................................................................. 36,308 ........................ 153 153 <0.01 

1 Calculations of the maximum annual take are based on the maximum requested Level A harassment take in any one year + the total requested Level B harassment take in any one year. 2The Oregon/Washington Coastal Stock was most recently estimated at 24,732 harbor seals in 1999 and more recent abundance data is not 

available (Carretta et al., 2022). 

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 2 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 (e.g., likelihood, 

scope, range). It further considers the 

likelihood that the measure will be 

effective if implemented (i.e., 

probability of accomplishing the 

mitigating result if implemented as 

planned), the likelihood of effective 

implementation (i.e., probability 

implemented as planned); and 

2. The practicability of the measures 

for applicant implementation, which 

may consider such things as cost, 

impact on operations. 

The mitigation measures described in 

the following sections would apply to 

the USACE in-water construction 

activities. 

Proposed Shutdown and Monitoring 

Zones 

In most impact and pile driving 

scenarios, the proposed shutdown zones 

exceed the calculated Level A isopleths; 

an exception occurs during impact pile 

driving of 24-in steel piles for phocids 

(e.g. harbor seals) when the calculated 

Level A harassment isopleth (130.6 m) 

exceeds the proposed shutdown zone of 

50 m. There was concern that the 

potential for seals to enter into a 

shutdown zone of 130 m would result 

in frequent delays and could impede the 

project’s schedule. Therefore, the 

shutdown zone will be established at 50 

m for phocid pinnipeds during impact 

driving of 24-in steel piles. 

TABLE 21—PROPOSED SHUTDOWN ZONE AND LEVEL B MONITORING ZONES BY ACTIVITY

Pile size and type 

Shutdown zone (m) Level B 

harassment 

Phocid Otariid (m) 

Vibratory pile driving 

24-in steel pile ............................................................................................................................. 50 15 3,981.1 

12-in timber pile ........................................................................................................................... 60 20 6,309.6 

Impact pile driving 

24-in steel pile ............................................................................................................................. 50 50 464.2 

12-in timber pile ........................................................................................................................... 15 15 21.5 

Prior to pile driving, protected species 

observers (PSOs) would survey the 

shutdown zones shown in table 21 and 

surrounding areas for at least 30 

minutes before pile driving activities 

start. If marine mammals are found 


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within the shutdown zone, pile driving 

would be delayed until the animal has 

moved out of the shutdown zone, either 

verified by a PSO or by waiting until 15 

minutes has elapsed without a sighting. 

If a marine mammal approaches or 

enters the shutdown zone during pile 

driving, the activity would be halted. 

Pile driving may resume after the 

animal has moved out of the shutdown 

zone or after at least 15 minutes has 

passed since the last observation of the 

animal. 

All marine mammals would be 

monitored in the Level B harassment 

zone to the extent of visibility for the 

on-duty PSOs. If a marine mammal for 

which take is authorized enters the 

Level B harassment zone, in-water 

activities would continue and PSOs 

would document the animal’s presence 

within the estimated harassment zone. 

If a species for which authorization 

has not been granted, or for which the 

authorized takes are met, is observed 

approaching or within the Level B 

harassment zone, pile driving activities 

would be shut down immediately. 

Activities would not resume until the 

animal has been confirmed to have left 

the area or 15 minutes has elapsed with 

no sighting of the animal. If a shutdown 

zone is obscured by fog or other 

weather/sea conditions that restrict the 

observers’ ability to observe, pile 

driving would not be initiated or would 

cease until the entire shutdown zone is 

visible so that monitoring may resume. 

PSOs 

The placement of PSOs during all pile 

driving and removal activities 

(described in detail in the Proposed 

Monitoring and Reporting section and 

Marine Mammal Monitoring Plan) will 

ensure that the Project Area is 

monitored to the maximum extent 

possible based on the required number 

of PSOs, required monitoring locations, 

and environmental conditions. 

Pre- and Post-Activity Monitoring 

Monitoring must take place from 30 

minutes prior to initiation of pile 

driving activities (i.e., pre-clearance 

monitoring) through 30 minutes postcompletion of pile driving. 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 

monitoring 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 a 30-minute period. If a 

marine mammal is observed within the 

shutdown zones, pile driving activity 

would be delayed or halted. If work 

ceases for more than 30 minutes, the 

pre-activity 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). 

Bubble Curtain 

A bubble curtain must be employed 

during all impact pile driving activities. 

The bubble curtain must distribute air 

bubbles around 100 percent of the piling 

circumference for the full depth of the 

water column. 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 

must ensure 100 percent substrate 

contact. No parts of the ring or other 

objects may prevent full substrate 

contact. Air flow to the bubblers must 

be balanced around the circumference 

of the pile. 

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 impact 

hammer operating at full capacity. For 

impact driving, an initial set of three 

strikes will be made by the hammer at 

reduced energy, followed by a 30- 

second waiting period, then 2 

subsequent 3-strike sets before initiating 

continuous driving. 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. 

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 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. 

Visual Monitoring 

Marine mammal monitoring during 

pile driving and removal must be 

conducted by NMFS-approved PSOs in 

a manner consistent with the following: 

• PSOs must be independent of the 

activity contractor (e.g., employed by a 

subcontractor) and have no other 

assigned tasks during monitoring 

periods; 

• At least 1 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 

education (i.e., 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. 


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• Where a team of 3 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. 

• PSOs must record all observations 

of marine mammals as described in the 

Marine Mammal Monitoring Plan, 

regardless of distance from the pile 

being driven. PSOs shall document any 

behavioral reactions in concert with 

distance from piles being driven or 

removed. 

PSOs should have the following 

additional qualifications: 

• Ability to conduct field 

observations and collect data according 

to assigned protocols; 

• Experience or training in the field 

identification of marine mammals, 

including the identification of 

behaviors; 

• Sufficient training, orientation, or 

experience with the construction 

operation to provide for personal safety 

during observations; 

• Writing skills sufficient to prepare a 

report of observations including but not 

limited to: (1) the number and species 

of marine mammals observed; (2) dates 

and times when in-water construction 

activities were conducted; (3) dates, 

times, and reason for implementation of 

mitigation (or why mitigation was not 

implemented when required); and (4) 

marine mammal behavior; and 

• 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. 

The USACE must employ a minimum 

of 2 PSOs. PSO locations will provide 

an unobstructed view of all water 

within the shutdown zone(s), and as 

much of the Level A harassment and 

Level B harassment zones as possible. 

PSOs would be stationed along the 

shore of the LCR. One would be located 

on the closest shoreline or construction 

barge adjacent to proposed pile driving 

and another observer could be stationed 

on a publicly accessible shoreline with 

a different vantage point of the 

disturbance area or be boat-based. 

The USACE would ensure that 

construction supervisors and crews, the 

monitoring team, and relevant USACE 

staff are trained prior to the start of 

activities subject to the proposed LOA, 

so that responsibilities, communication 

procedures, monitoring protocols, and 

operational procedures are clearly 

understood. New personnel joining 

during the project would be trained 

prior to commencing work. Monitoring 

would occur for all in-water pile driving 

activities during the pile installation 

work window (November 1 to February 

15). 

Data Collection 

PSOs would use approved data forms 

to record the following information: 

• Dates and times (beginning and 

end) of all marine mammal monitoring; 

• PSO locations during marine 

mammal monitoring; 

• Construction activities occurring 

during each daily observation period, 

including how many and what type of 

piles were driven or removed and by 

what method (i.e., vibratory, impact); 

• Weather parameters and water 

conditions; 

• The number of marine mammals 

observed, by species, relative to the pile 

location and if pile driving or removal 

was occurring at time of sighting; 

• Distance and bearings of each 

marine mammal observed to the pile 

being driven or removed; 

• Description of marine mammal 

behavior patterns, including direction of 

travel; 

• Age and sex class, if possible, of all 

marine mammals observed; and 

• Detailed information about 

implementation of any mitigation 

triggered (e.g., shutdowns and delays), a 

description of specific actions that 

ensued, and resulting behavior of the 

animal if any. 

Reporting 

The USACE 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 effective 

period of the LOA. 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 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 must 

include: 

• Dates and times (begin and end) of 

all marine mammal monitoring; 

• Construction activities occurring 

during each daily observation period, 

including the number and type of piles 

driven or removed and by what method 

(i.e., vibratory driving) and the total 

equipment duration for cutting for each 

pile; 

• PSO locations during marine 

mammal monitoring; 

• 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; 

• Upon observation of a marine 

mammal, the following information: (1) 

name of PSO who sighted the animal(s) 

and PSO location and activity at time of 

sighting; (2) time of sighting; (3) 

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; (4) 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); (5) estimated number 

of animals (min/max/best estimate); (6) 

estimated number of animals by cohort 

(e.g., adults, juveniles, neonates, group 

composition, etc.); (7) animal’s closest 

point of approach and estimated time 

spent within the harassment zone; and 

(8) 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 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 would constitute the final report. 

If comments are received, a final report 

addressing NMFS comments must be 

submitted within 30 days after receipt of 

comments. 

Reporting Injured or Dead Marine 

Mammals 

In the event that personnel involved 

in the construction activities discover 


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an injured or dead marine mammal, the 

USACE shall report the incident to the 

Office of Protected Resources (OPR), 

NMFS, and to the west coast regional 

stranding network as soon as feasible. If 

the death or injury was clearly caused 

by the specified activity, the USACE 

must immediately cease the specified 

activities until NMFS is able to review 

the circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the LOA. 

The USACE must not resume their 

activities until notified by NMFS. The 

report must include the following 

information: 

• Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

• Species identification (if known) or 

description of the animal(s) involved; 

• Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

• Observed behaviors of the 

animal(s), if alive; 

• If available, photographs or video 

footage of the animal(s); and 

• 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 California sea 

lions, Steller sea lions, and harbor seals, 

given that the anticipated effects of this 

activity on these different marine 

mammal stocks are expected to be 

similar since they have comparable 

behavioral sensitivities and, therefore, 

no meaningful differences in terms of 

likely impacts. There is little 

information about the nature or severity 

of the impacts, or the size, status, or 

structure of any of these species or 

stocks that would lead to a different 

analysis for this activity. 

Vibratory and impact pile driving 

activities have the potential to disturb or 

displace marine mammals. Specifically, 

the project 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 are present in the ensonified 

zone when these activities are 

underway. 

The takes from Level B harassment 

would be due to potential behavioral 

disturbance, and TTS. Level A 

harassment takes would be due to 

auditory injury. No mortality or serious 

injury is anticipated given the nature of 

the activity, even in the absence of the 

required mitigation. The potential for 

harassment is minimized through the 

construction method and the 

implementation of the proposed 

mitigation measures (see Proposed 

Mitigation section). 

Take would occur within a limited, 

confined area (the LCR) of the stocks’ 

ranges. The duration and intensity of 

authorized harassment events would be 

minimized through use of mitigation 

measures described herein. Further, the 

amount of take proposed to be 

authorized is small when compared to 

stock abundance, and the project is not 

anticipated to impact any known 

important habitat areas for any marine 

mammal species. 

Take by Level A harassment is 

proposed for a single species (harbor 

seal) to account for the potential that an 

animal could enter and remain within 

the area between a Level A harassment 

zone and the shutdown zone for a 

duration long enough to be taken by 

Level A harassment. Limited take by 

Level A harassment is expected to arise 

from, at most, a small degree of auditory 

injury (AUD INJ) during impact driving, 

which will only be used briefly to 

achieve the final 5-ft of embedment 

depth for a given pile. Animals would 

need to be exposed to higher levels and/ 

or longer duration in order to incur any 

more than a small degree of AUD INJ. 

Additionally, and as noted previously, 

some subset of the individuals that are 

behaviorally harassed could also 

simultaneously incur some small degree 

of TTS for a short duration of time. 

Because of the small degree anticipated, 

though, any AUD INJ or TTS potentially 

incurred here would not be expected to 

adversely impact individual fitness, let 

alone annual rates of recruitment or 

survival. 

Marine mammal behavioral responses 

to pile driving, if any, are expected to 

be mild and temporary. Marine 

mammals found within the Level B 

harassment zone may not show any 

visual cues they are disturbed by 

activities or they could become alert, 

avoid the area, leave the area, or display 

other mild responses that are not 

observable such as changes in 

vocalization patterns. Given the limited 

number of piles to be installed per day 

and that pile driving would occur across 

a range of 1 to 51 days between 

November 1 and February 15 each year 

over the 5-year effective period of the 

LOA, the effects of any harassment 

would be temporary. 

Impacts on marine mammal prey that 

would occur during the USACE’s 

proposed activity would have, at most, 

short-term effects on foraging of 

individual marine mammals, and likely 

no effect on the populations of marine 

mammals as a whole. Indirect effects on 

marine mammal prey during the 

construction are expected to be minor, 

and these effects are unlikely to cause 

substantial effects on marine mammals 

at the individual level, with no expected 

effect on annual rates of recruitment or 

survival. 

In addition, it is unlikely that minor 

noise effects in a small, localized area of 

habitat would have any effect on the 

stocks’ annual rates of recruitment or 

survival. In combination, we believe 

that these factors, as well as the 

available body of evidence from other 

similar activities, demonstrate that the 

potential effects of the specified 

activities will have only minor, shortterm effects on individuals. The 

specified activities are not expected to 

impact rates of recruitment or survival 

and will therefore not result in 

population-level impacts. 

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 any of 


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the species or stocks through effects on 

annual rates of recruitment or survival: 

• No serious injury or mortality is 

anticipated or authorized; 

• The intensity of anticipated takes 

by Level B harassment is relatively low 

for all stocks and would not be of a 

duration or intensity expected to result 

in impacts on reproduction or survival; 

• No important habitat areas have 

been identified within the Project Area; 

• For species proposed for 

authorization, the Project Area is a very 

small and peripheral part of their range 

and anticipated habitat impacts are 

minor; 

• The USACE would implement 

mitigation measures, such as bubble 

curtains and soft-starts for impact pile 

driving; and 

• Monitoring and shutdowns would 

minimize the numbers of marine 

mammals exposed to injurious levels of 

sound to ensure that take by Level A 

harassment would result, at most, in a 

small degree of AUD INJ. 

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 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 

maximum number of individuals taken 

in any year 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 maximum annual 

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 20 demonstrates the maximum 

number of Level A and Level B 

harassment events per year. Our 

analysis shows that no more than 29.6 

percent of harbor seals, 3.6 percent of 

California sea lions and less than 0.01 

percent of Steller sea lions could be 

taken by Level A and Level B 

harassment. The numbers of animals 

proposed to be taken for these stocks 

would be considered small relative to 

the relevant stock’s abundances, even if 

each estimated taking occurred to a new 

individual—an extremely unlikely 

scenario. 

Based on the analysis contained 

herein of the proposed activity 

(including the proposed mitigation and 

monitoring measures) and the 

anticipated take of marine mammals, 

NMFS preliminarily 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. 

Adaptive Management 

The regulations governing the take of 

marine mammals incidental to the 

USACE’s construction activities would 

contain an adaptive management 

component. The reporting requirements 

associated with this proposed 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 USACE 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. 

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 USACE’s 

request and the proposed regulations 

(see ADDRESSES). All comments germane 

to this rulemaking 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 USACE is the sole entity that would 

be subject to the requirements in these 

proposed regulations, and the USACE is 

not a small governmental jurisdiction, 

small organization, or small business, as 

defined by the RFA. Therefore, 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. 

List of Subjects in 50 CFR Part 217 

Administrative practice and 

procedure, Exports, Fish, Imports, 


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Marine mammals, Penalties, Reporting 

and recordkeeping requirements, 

Transportation, Wildlife. 

Dated: November 4, 2024. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set forth in the 

preamble, NMFS proposes to amend 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. Add subpart H to read as follows: 

Subpart H—Taking Marine Mammals 

Incidental to the Lower Columbia River 

Dredged Material Management Plan, 

Oregon and Washington 

Sec. 

217.70 Specified activity and geographical 

region. 

217.71 Effective dates. 

217.72 Permissible methods of taking. 

217.73 Prohibitions. 

217.74 Mitigation requirements. 

217.75 Requirements for monitoring and 

reporting. 

217.76 Letters of Authorization. 

217.77 Renewals and modifications of 

Letters of Authorization. 217.78— 

217.279 [Reserved] 

§ 217.70 Specified activity and 

geographical region. 

(a) Regulations in this subpart apply 

only to the United States Army Corps of 

Engineers (USACE) 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, 

as designated in the Lower Columbia 

River Dredged Material Management 

Plan, Oregon and Washington. 

Requirements imposed on the USACE 

pursuant to this subpart must be 

implemented by those persons it 

authorizes or funds to conduct activities 

on its behalf. 

(b) The taking of marine mammals by 

the USACE may be authorized in a 

Letter of Authorization (LOA) only if it 

occurs near the Mouth of the Columbia 

River in Oregon and Washington. 

§ 217.71 Effective dates. 

Regulations in this subpart are 

effective from November 1, 2027, 

through February 29, 2032. 

§ 217.72 Permissible methods of taking. 

Under an LOA issued pursuant to 

§ 216.106 of this chapter and § 217.76, 

the Holder of the LOA (hereinafter 

‘‘USACE’’) may incidentally, but not 

intentionally, take marine mammals 

within the area described in § 217.70(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. 

§ 217.73 Prohibitions. 

Except for the takings contemplated 

in § 217.72 and authorized by an LOA 

issued under this subpart, it is unlawful 

for any person to do any of the 

following in connection with the 

activities described in § 217.70: 

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

terms, conditions, and requirements of 

this subpart or an LOA issued under 

this subpart; 

(2) Take of 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. 

§ 217.74 Mitigation requirements. 

When conducting the activities 

identified in § 217.70(a), the mitigation 

measures contained in any LOA issued 

under this subpart must be 

implemented. These mitigation 

measures include but are not limited to: 

(1) A copy of the LOA must be in the 

possession of the USACE, supervisory 

construction personnel, lead protected 

species observers (PSOs), and any other 

relevant designees of the USACE 

operating under the authority of the 

LOA at all times that activities subject 

to the LOA are being conducted. 

(2) The USACE shall conduct training 

between supervisors and crews, the PSO 

team, and relevant USACE staff are 

trained prior to the start of construction 

activity subject to this subpart, so that 

responsibilities, communication 

procedures, monitoring protocols, and 

operational procedures are clearly 

understood. New personnel joining 

during the project must be trained in the 

aforementioned matters prior to 

commencing work. 

(3) The USACE must employ PSOs 

and establish monitoring locations as 

described in the Marine Mammal 

Monitoring Plan (see § 217.75). The 

USACE must monitor the project area to 

the maximum extent possible based on 

the required number of PSOs, required 

monitoring locations, and 

environmental conditions. 

(4) 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. 

(5) Pre-start clearance monitoring 

must be conducted during periods of 

visibility sufficient for the lead PSO to 

determine that the shutdown zones are 

clear of marine mammals. Pile driving 

may commence following 30 minutes of 

observation when the shutdown zones 

are clear of marine mammals. 

(6) For all pile driving activity, the 

USACE must implement shutdown 

zones with radial distances as identified 

in an LOA issued under this subpart. 

(7) If a marine mammal is observed 

entering or within the shutdown zones, 

pile driving activity must be delayed or 

halted. Pile driving must be commenced 

or resumed as described in paragraph 

(a)(9) of this section. 

(8) If pile driving is delayed or halted 

due to the presence of a marine 

mammal, the activity may not 

commence or resume until either the 

animal has voluntarily exited and been 

visually confirmed beyond the 

shutdown zone or 15 minutes have 

passed without re-detection of the 

animal. 

(9) The USACE must avoid direct 

physical interaction with marine 

mammals during construction activity. 

If a marine mammal comes within 15 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. 

(10) The USACE 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. 


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(11) The USACE must deploy PSOs as 

indicated in an NMFS-approved Marine 

Mammal Monitoring Plan. 

(12) The USACE must employ bubble 

curtain systems during all impact 

driving except under conditions where 

the water depth is less than 0.67 m (2 

ft) 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. 

(13) 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. 

(14) Pile driving activity must be 

halted upon observation of either a 

species for which incidental take is not 

authorized or a species for which 

incidental take has been authorized but 

the authorized number of takes has been 

met, entering or within the harassment 

zone. 

§ 217.75 Requirements for monitoring and 

reporting. 

(a) The USACE must submit a Marine 

Mammal Monitoring Plan to NMFS for 

approval at least 90 days in advance of 

construction. Marine mammal 

monitoring must be conducted in 

accordance with the conditions in this 

section and the approved Monitoring 

Plan. 

(b) Monitoring must be conducted by 

qualified, NMFS-approved PSOs, in 

accordance with the following 

conditions: 

(1) PSOs must be independent of the 

activity contractor (for example, 

employed by a subcontractor) and have 

no other assigned tasks during 

monitoring periods. 

(2) 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. 

(3) Other PSOs may substitute other 

relevant experience, education (i.e., 

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. 

(4) 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. 

(5) PSOs must record all observations 

of marine mammals as described in the 

Marine Mammal Monitoring Plan, 

regardless of distance from the pile 

being driven. PSOs shall document any 

behavioral reactions in concert with 

distance from piles being driven or 

removed. 

(c) The USACE must establish 

monitoring locations as described in the 

Monitoring Plan. For all pile driving 

activities, a minimum of 1 PSO must be 

assigned to each active pile driving 

location to monitor the shutdown zones. 

(d) The USACE 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 in 

paragraphs (d)(1) through (5) of this 

section at minimum: 

(1) Dates and times (beginning 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) PSO locations during marine 

mammal monitoring. 

(4) 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); and 

(5) 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) Number of marine mammals 

detected within the harassment zones, 

by species; 

(x) 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 

(xi) All PSO datasheets and/or raw 

sightings data. 

(e) In the event that personnel 

involved in the construction activities 

discover an injured or dead marine 

mammal, the USACE 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 

USACE 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 subpart and the LOA issued under 

§ 216.106 of this chapter and §217.76. 

The USACE must not resume their 

activities until notified by NMFS. The 

report must include the following 

information: 


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(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. 

§ 217.76 Letters of Authorization. 

(a) To incidentally take marine 

mammals pursuant to this subpart, the 

USACE 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 February 29, 2032. 

(c) If an LOA expires prior to February 

29, 2032, the USACE 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 USACE must apply for and 

obtain a modification of the LOA as 

described in § 217.77. 

(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 this subpart. 

(g) Notice of issuance or denial of an 

LOA must be published in the Federal 

Register within 30 days of a 

determination. 

§ 217.77 Renewals and modifications of 

Letters of Authorization. 

(a) An LOA issued under § 216.106 of 

this chapter and § 217.76 for the activity 

identified in § 217.70(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 this 

subpart; and 

(2) NMFS determines that the 

mitigation, monitoring, and reporting 

measures required by the previous LOA 

under this subpart 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 this 

subpart 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 § 217.76 for the activity 

identified in § 217.70(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 USACE 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 this subpart; 

(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 USACE’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 this subpart 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; 

and 

(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 

an LOA issued pursuant to § 216.106 of 

this chapter and § 217.76, an 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. 

§§ 217.78–217.79 [Reserved] 

[FR Doc. 2024–26069 Filed 11–12–24; 8:45 am] 

BILLING CODE 3510–22–P 


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