[Federal Register Volume 80, Number 42 (Wednesday, March 4, 2015)]
[Notices]
[Pages 11648-11659]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-04425]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD741


Taking of Marine Mammals Incidental to Specified Activities; 
Anacortes Tie-Up Slips Dolphin and Wingwall Replacement

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

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

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SUMMARY: NMFS has received a request from the Washington State 
Department of Transportation (WSDOT) for an authorization to take small 
numbers of 11 species of marine mammals, by Level B harassment, 
incidental to proposed construction activities for a tie-up slips 
dolphin and wingwall replacement project in Anacortes, Washington 
State. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is 
requesting comments on its proposal to issue an authorization to WDOT 
to incidentally take, by harassment, small numbers of marine mammals 
for a period of 1 year.

DATES: Comments and information must be received no later than April 3, 
2015.

ADDRESSES: Comments on the application should be addressed to Jolie 
Harrison, Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910. The mailbox address for providing email 
comments is <a href="/cdn-cgi/l/email-protection#f8918c88d69f8d9996b896979999d69f978e"><span class="__cf_email__" data-cfemail="7e170a0e50190b1f103e10111f1f50191108">[email protected]</span></a>. NMFS is not responsible for email 
comments sent to addresses other than the one provided here. Comments 
sent via email, including all attachments, must not exceed a 25-
megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information 
(for example, name, address, etc.) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    A copy of the application may be obtained by writing to the address 
specified above or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents

[[Page 11649]]

cited in this notice may also be viewed, by appointment, during regular 
business hours, at the aforementioned address.

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``. . . an impact resulting from the specified activity that cannot 
be reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for a one-year authorization to 
incidentally take small numbers of marine mammals by harassment, 
provided that there is no potential for serious injury or mortality to 
result from the activity. Section 101(a)(5)(D) establishes a 45-day 
time limit for NMFS review of an application followed by a 30-day 
public notice and comment period on any proposed authorizations for the 
incidental harassment of marine mammals. Within 45 days of the close of 
the comment period, NMFS must either issue or deny the authorization.

Summary of Request

    On April 1, 2014, WSDOT submitted a request to NOAA requesting an 
IHA for the possible harassment of small numbers of 11 marine mammal 
species incidental to construction associated with the Anacortes Tie-up 
Slips Dolphin and Wingwall Replacement in the city of Anacortes, on 
Fidalgo Island, adjacent to Guemes Channel, Skagit County, Washington, 
between September 1, 2015, and February 15, 2016. NMFS determined that 
the IHA application was complete on July 1, 2014. NMFS is proposing to 
authorize the Level B harassment of the following marine mammal 
species/stocks: Harbor seal, California sea lion, Steller sea lion 
(eastern Distinct Population Segment, or DPS), northern elephant seal, 
killer whale (transient and Southern Resident stocks), gray whale, 
humpback whale, minke whale, harbor porpoise, Dall's porpoise, and 
Pacific white-sided dolphin.

Description of the Specified Activity

Overview

    The purpose of this project is to replace the aging timber 
wingwalls and dolphins in Tie-up Slips 3 and 4 (Figures 1-3, 1-4 and 1-
5 in WSDOT's IHA application) with standard steel and concrete designs. 
The aging timber facilities are beginning to deteriorate from combined 
docking operations, salt water infusion and wood rot organisms. 
Replacement of these facilities will allow the ferries to safely moor 
at the terminal and provide the necessary protection of the terminal 
from the docking of ferries. The timber piles that will be permanently 
removed are listed Table 1.
    WSDOT plans to re-use eight existing 36-inch steel piles (remove 
and relocate) and install 52 new permanent steel piles (24-, 30-, and 
36-inch) with a vibratory hammer. In addition, WSDOT may install one 
temporary dolphin consisting of one 24-inch steel pile and/or the 
contractor may elect to temporarily install four 24-inch steel piles at 
the location of each dolphin and wingwall to be used as a pile driving 
template for the permanent piles (Table 2). These four temporary piles 
will be removed once the corresponding landing aid is completed, then 
installed at the location of the next structure, and completely removed 
at the end of the project. Between one and five temporary piles will be 
installed at any given time during the project.
    A vibratory hammer will be used for pile removal and driving. No 
impact pile driving or proofing is necessary. Existing timber piles may 
also be removed by direct pull. Pile driving and removal will be 
conducted from a barge containing a derrick, crane, and other necessary 
equipment. The barge will be anchored and/or spudded. No barge dynamic 
positioning system (DPS) will be used on this project.

                   Table 1--Timber Piles To Be Removed
------------------------------------------------------------------------
                                                               Number of
                          Structure                              piles
                                                                removed
------------------------------------------------------------------------
Slip 3 Wingwalls.............................................         46
Slip 3 Left Dolphin..........................................         35
Slip 3 Right Inner...........................................         35
Slip 3 Right Outer...........................................         51
Slip 4 Wing Dolphins.........................................         70
Slip 4 Right Outer...........................................         35
                                                              ----------
    Total....................................................        272
------------------------------------------------------------------------


                                                         Table 2--Project Piles To Be Installed
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                                                                                               Existing   Temporary   New permanent steel piles
                                                                                                 steel      steel    ---------------------------
                 Structure name                               Location                 Depth     piles      piles*                                Total
                                                                                       (ft)   -----------------------   36''     30''     24''
                                                                                                 36''        24''
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dolphin 1......................................  Slip 3 left intermediate..........       -28  ........            4        1        4  .......        9
Dolphin 2......................................  Slip 3 right inner (double sided).       -28  ........            4        2        4  .......       10
Dolphin 3......................................  Slip 3 right outer (double sided).       -30  ........            4       10        6  .......       20
Dolphin 4......................................  Slip 4 right outer................       -27  ........            4        3        6  .......       13
Wingwall 1.....................................  Slip 3............................       -28         8  ...........  .......  .......        4       12
Wingwall 2.....................................  Slip 4............................       -25  ........  ...........        4  .......        8       16
Temporary Dolphin..............................  Protective Dolphin................       -34  ........            1  .......  .......  .......        1
                                                                                    --------------------------------------------------------------------
    Total......................................  ..................................  ........         8        5 \1\       20       20       12       81
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ No more than five temporary piles will be in place at any one time.


[[Page 11650]]

Dates and Duration

    In-water construction is planned to take place between September 
2015 and February 2016. The on-site work will last approximately 135 
days with pile removal and driving taking place over approximately 36 
days. All work will occur in water depths between -25 and -34 feet mean 
low low water (MLLW).
    Duration estimates of each of the pile driving elements follow:
    <bullet> The daily construction window for pile removal or driving 
will begin no sooner than 30 minutes after sunrise to allow for initial 
marine mammal monitoring, and will end 30 minutes before sunset to 
allow for post-construction marine mammal monitoring.
    <bullet> Vibratory pile removal of the existing timber piles will 
take approximately 10 to 15 minutes per pile. Vibratory removal will 
take less time than driving, because piles are vibrated to loosen them 
from the soil, and then pulled out with the vibratory hammer turned 
off. Assuming the worst case of 15 minutes per pile (with no direct 
pull or clamshell removal), removal of 272 piles at the Anacortes 
terminal will take 68 hours over nine days of pile removal.
    <bullet> Vibratory pile driving of the steel piles will take 
approximately 20 minutes per pile, with three to five piles installed 
per day. Assuming 20 minutes per pile, and three piles per day, driving 
of 81 piles at the Anacortes terminal will take 27 hours over 27 days.
    The total worst-case time for pile removal is nine days, and 27 
days for pile installation. The actual number of pile-removal/driving 
days is expected to be less.

Specified Geographic Region

    The proposed activities will occur at the Anacortes ferry terminal 
located in Anacortes, Washington (see Figures 1-1 and 1-2 of WSDOT's 
IHA application). The terminal is adjacent to Guemes Channel, tributary 
to the Georgia Basin.
    The Anacortes ferry terminal, serving State Route 20, is located in 
the city of Anacortes, on Fidalgo Island, adjacent to Guemes Channel, 
Skagit County, Washington. Guemes Channel is tributary to the Georgia 
Basin. The terminal is located in Section 22, Township 35 North, Range 
1 East. This is the primary terminal for all WSDOT ferry departures to 
the San Juan Islands and Vancouver Island. Land use in the area is a 
mix of residential, business, and local parks.

Detailed Description of Anacortes Tie-up Slips Dolphin and Wingwall 
Replacement

    The following construction activities are anticipated:
    <bullet> Remove three 35-pile dolphins, one 51-pile dolphin, 70 
piles associated with wing-dolphins, and 46 piles associated with 
wingwalls. These piles will be removed with a vibratory hammer or by 
direct pull and clamshell removal.
    <bullet> If necessary, vibratory pile-drive one to five 24-inch 
steel piles for use as a temporary template at each structure location.
    <bullet> Vibratory pile-drive up to six 30-inch steel piles and up 
to ten 36-inch steel piles for each new dolphin.
    <bullet> Place precast concrete diaphragm on new dolphins.
    <bullet> Attach fender panel to new fender pile.
    <bullet> Remove temporary piles.
    <bullet> At Slip 3 wingwalls, vibratory pile-drive up to four 24-
inch steel piles (two per wingwall).
    <bullet> At Slip 4 wingwalls, vibratory pile-drive and up to four 
24-inch steel piles (two per wingwall), and eight 36-inch steel piles 
(four per wingwall).
    <bullet> Attach rubber fenders between plumb piles.
    Approximately 441 tons of creosote-treated timbers will be removed 
from the marine environment. The total mudline footprint of the 
existing dolphins is 258 square feet (ft2). The total mudline footprint 
of the new dolphins will be 263 ft2, an increase of five square feet. 
However, the footprint of the new steel dolphins will be more open, 
allowing fish movement between the piles. The new dolphins and 
wingwalls will have 52 piles, compared to the existing structures, 
which have 272 tightly clustered piles with no space between them. 
Detailed descriptions of these activities are provided below.
(1) Vibratory Hammer Pile Removal
    Vibratory hammer extraction is a common method for removing timber 
piling. A vibratory hammer is a large mechanical device mostly 
constructed of steel (weighing 5 to 16 tons) that is suspended from a 
crane by a cable. It is attached to a derrick and positioned on the top 
of a pile. The pile is then unseated from the sediments by engaging the 
hammer, creating a vibration that loosens the sediments binding the 
pile, and then slowly lifting up on the hammer with the aid of the 
crane.
    Once unseated, the crane will continue to raise the hammer and pull 
the pile from the sediment. When the pile is released from the 
sediment, the vibratory hammer is disengaged and the pile is pulled 
from the water and placed on a barge for transfer upland. Vibratory 
removal will take approximately 10 to 15 minutes per pile, depending on 
sediment conditions.
    The piling will be loaded onto the barge or into a container and 
disposed of offsite in accordance with State of Washington 
Administrative Code (WAC) 173-304 Minimum Functional Standards for 
Solid Waste Handling and mitigation.
(2) Direct Pull and Clamshell Pile Removal
    Older timber pilings are particularly prone to breaking at the 
mudline because of damage from marine borers and vessel impacts, and 
must be removed because they can interfere with the installation of new 
pilings. In some cases, removal with a vibratory hammer is not possible 
if the pile is too fragile to withstand the hammer force.
    Broken or damaged piles may be removed by wrapping the piles with a 
cable and pulling them directly from the sediment with a crane. If the 
piles break below the waterline, the pile stubs may be removed with a 
clamshell bucket, a hinged steel apparatus that operates like a set of 
steel jaws. The bucket will be lowered from a crane and the jaws will 
grasp the pile stub as the crane pulls up. The broken piling and stubs 
will be loaded onto the barge for off-site disposal. Clamshell removal 
will be used only if necessary. Direct pull and clamshell removal do 
not produce noise that could impact marine mammals.
(3) Vibratory Hammer Pile Installation
    Vibratory hammers are commonly used in steel pile installation 
where sediments allow and may involve the same vibratory hammer used in 
pile extraction. The pile is placed into position using a choker and 
crane, and then vibrated between 1,200 and 2,400 vibrations per minute. 
The vibrations liquefy the sediment surrounding the pile allowing it to 
penetrate to the required seating depth. The type of vibratory hammer 
that will be used for the project will likely be an APE 400 King Kong 
(or equivalent) with a drive force of 361 tons.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction most likely to 
occur in the proposed construction area include Pacific harbor seal 
(Phoca vitulina richardsi), northern elephant seal (Mirounga 
angustirostris), California sea lion (Zalophus

[[Page 11651]]

californianus), Steller sea lion (Eumetopias jubatus), killer whale 
(Orcinus orca) (transient and Southern Resident stocks), gray whale 
(Eschrichtius robustus), humpback whale (Megaptera novaeangliae), minke 
whale (Balaenoptera acutorostrata), harbor porpoise (Phocoena 
phocoena), Dall's porpoise (P. dali), and Pacific white-sided dolphin 
(Lagenorhynchus obliquidens).

                     Table--Marine Mammal Species Potentially Present in Region of Activity
----------------------------------------------------------------------------------------------------------------
               Species                       ESA Status              MMPA Status               Occurrence
----------------------------------------------------------------------------------------------------------------
Harbor Seal.........................  Not listed.............  Non-depleted...........  Frequent.
California Sea Lion.................  Not listed.............  Non-depleted...........  Frequent.
Northern Elephant Seal..............  Not listed.............  Non-depleted...........  Occasional.
Steller Sea Lion (eastern DPS)......  Not listed.............  Under review...........  Rare.
Harbor Porpoise.....................  Not listed.............  Non-depleted...........  Frequent.
Dall's Porpoise.....................  Not listed.............  Non-depleted...........  Occasional.
Pacific White-sided dolphin.........  Not listed.............  Non-depleted...........  Occasional.
Killer Whale........................  Endangered (Southern     Depleted...............  Occasional.
                                       Resident).
Gray Whale..........................  Delisted...............  Unclassified...........  Occasional.
Humpback Whale......................  Endangered.............  Depleted...............  Rare.
Minke Whale.........................  Not listed.............  Non-depleted...........  Rare.
----------------------------------------------------------------------------------------------------------------

    General information on the marine mammal species found in 
Washington coastal waters can be found in Caretta et al. (2014), which 
is available at the following URL: http://www.nmfs.noaa.gov/pr/sars/pdf/po2013.pdf. Refer to that document for information on these 
species. A list of marine mammals in the vicinity of the action and 
their status are provided in Table 3. Specific information concerning 
these species in the vicinity of the proposed action area is provided 
in detail in the WSDOT's IHA application.

Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that the 
types of stressors associated with the specified activity (e.g., pile 
removal and pile driving) have been observed to impact marine mammals. 
This discussion may also include reactions that we consider to rise to 
the level of a take and those that we do not consider to rise to the 
level of a take (for example, with acoustics, we may include a 
discussion of studies that showed animals not reacting at all to sound 
or exhibiting barely measurable avoidance). This section is intended as 
a background of potential effects and does not consider either the 
specific manner in which this activity will be carried out or the 
mitigation that will be implemented, and how either of those will shape 
the anticipated impacts from this specific activity. The ``Estimated 
Take by Incidental Harassment'' section later in this document will 
include a quantitative analysis of the number of individuals that are 
expected to be taken by this activity. The ``Negligible Impact 
Analysis'' section will include the analysis of how this specific 
activity will impact marine mammals and will consider the content of 
this section, the ``Estimated Take by Incidental Harassment'' section, 
the ``Proposed Mitigation'' section, and the ``Anticipated Effects on 
Marine Mammal Habitat'' section to draw conclusions regarding the 
likely impacts of this activity on the reproductive success or 
survivorship of individuals and from that on the affected marine mammal 
populations or stocks.
    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms have been derived using 
auditory evoked potentials, anatomical modeling, and other data, 
Southall et al. (2007) designate ``functional hearing groups'' for 
marine mammals and estimate the lower and upper frequencies of 
functional hearing of the groups. The functional groups and the 
associated frequencies are indicated below (though animals are less 
sensitive to sounds at the outer edge of their functional range and 
most sensitive to sounds of frequencies within a smaller range 
somewhere in the middle of their functional hearing range):
    <bullet> Low frequency cetaceans (13 species of mysticetes): 
Functional hearing is estimated to occur between approximately 7 Hz and 
22 kHz (however, a study by Au et al., (2006) of humpback whale songs 
indicate that the range may extend to at least 24 kHz);
    <bullet> Mid-frequency cetaceans (32 species of dolphins, six 
species of larger toothed whales, and 19 species of beaked and 
bottlenose whales): Functional hearing is estimated to occur between 
approximately 150 Hz and 160 kHz;
    <bullet> High frequency cetaceans (eight species of true porpoises, 
six species of river dolphins, Kogia, the franciscana, and four species 
of cephalorhynchids): Functional hearing is estimated to occur between 
approximately 200 Hz and 180 kHz; and
    <bullet> Pinnipeds in Water: Functional hearing is estimated to 
occur between approximately 75 Hz and 75 kHz, with the greatest 
sensitivity between approximately 700 Hz and 20 kHz.
    As mentioned previously in this document, 11 marine mammal species 
(7 cetacean and 4 pinniped species) are likely to occur in the proposed 
seismic survey area. Of the 7 cetacean species likely to occur in the 
proposed project area, 3 are classified as low-frequency cetaceans 
(i.e., humpback, gray, and minke whales), 2 are classified as mid-
frequency cetaceans (i.e., killer whale and Pacific white-sided 
dolphin), and 2 are classified as high-frequency cetaceans (i.e., 
harbor and Dall's porpoises) (Southall et al., 2007). A species' 
functional hearing group is a consideration when we analyze the effects 
of exposure to sound on marine mammals.
    Marine mammals exposed to high-intensity sound repeatedly or for 
prolonged periods can experience hearing threshold shift (TS), which is 
the loss of hearing sensitivity at certain frequency ranges (Kastak et 
al. 1999; Schlundt et al. 2000; Finneran et al. 2002; 2005). TS can be 
permanent (PTS), in which case the loss of hearing sensitivity is 
unrecoverable, or temporary (TTS), in which case the animal's hearing 
threshold will recover over time (Southall et al. 2007). Since marine 
mammals depend on acoustic cues for vital biological functions, such as 
orientation, communication, finding prey, and avoiding predators, 
hearing impairment could result in the reduced

[[Page 11652]]

ability of marine mammals to detect or interpret important sounds. 
Repeated noise exposure that causes TTS could lead to PTS.
    Experiments on a bottlenose dolphin (Tursiops truncates) and beluga 
whale (Delphinapterus leucas) showed that exposure to a single watergun 
impulse at a received level of 207 kPa (or 30 psi) peak-to-peak (p-p), 
which is equivalent to 228 dB (p-p) re 1 [mu]Pa, resulted in a 7 and 6 
dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds 
returned to within 2 dB of the pre-exposure level within 4 minutes of 
the exposure (Finneran et al. 2002). No TTS was observed in the 
bottlenose dolphin. Although the source level of one hammer strike for 
pile driving is expected to be much lower than the single watergun 
impulse cited here, animals being exposed for a prolonged period to 
repeated hammer strikes could receive more noise exposure in terms of 
sound exposure level (SEL) than from the single watergun impulse 
(estimated at 188 dB re 1 [mu]Pa\2\-s) in the aforementioned experiment 
(Finneran et al. 2002).
    Chronic exposure to excessive, though not high-intensity, noise 
could cause masking at particular frequencies for marine mammals that 
utilize sound for vital biological functions (Clark et al. 2009). 
Masking is the obscuring of sounds of interest by other sounds, often 
at similar frequencies. Masking generally occurs when sounds in the 
environment are louder than, and of a similar frequency as, auditory 
signals an animal is trying to receive. Masking can interfere with 
detection of acoustic signals, such as communication calls, 
echolocation sounds, and environmental sounds important to marine 
mammals. Therefore, under certain circumstances, marine mammals whose 
acoustical sensors or environment are being severely masked could also 
be impaired.
    Masking occurs at the frequency band which the animals utilize. 
Since noise generated from in-water vibratory pile removal and driving 
is mostly concentrated at low frequency ranges, it may have little 
effect on high-frequency echolocation sounds by odontocetes (toothed 
whales), which may hunt California sea lion and harbor seal. However, 
the lower frequency man-made noises are more likely to affect the 
detection of communication calls and other potentially important 
natural sounds, such as surf and prey noise. The noises may also affect 
communication signals when those signals occur near the noise band, and 
thus reduce the communication space of animals (e.g., Clark et al. 
2009) and cause increased stress levels (e.g., Foote et al. 2004; Holt 
et al. 2009).
    Unlike TS, masking can potentially impact the species at community, 
population, or even ecosystem levels, as well as individual levels. 
Masking affects both senders and receivers of the signals and could 
have long-term chronic effects on marine mammal species and 
populations. Recent science suggests that low frequency ambient sound 
levels in the world's oceans have increased by as much as 20 dB (more 
than 3 times, in terms of SPL) from pre-industrial periods, and most of 
these increases are from distant shipping (Hildebrand 2009). All 
anthropogenic noise sources, such as those from vessel traffic and pile 
removal and driving, contribute to the elevated ambient noise levels, 
thus intensifying masking.
    Finally, in addition to TS and masking, exposure of marine mammals 
to certain sounds could lead to behavioral disturbance (Richardson et 
al. 1995), such as: Changing durations of surfacing and dives, number 
of blows per surfacing, or moving direction and/or speed; reduced/
increased vocal activities; changing/cessation of certain behavioral 
activities, such as socializing or feeding; visible startle response or 
aggressive behavior, such as tail/fluke slapping or jaw clapping; 
avoidance of areas where noise sources are located; and/or flight 
responses (e.g., pinnipeds flushing into water from haulouts or 
rookeries). The onset of behavioral disturbance from anthropogenic 
noise depends on both external factors (characteristics of noise 
sources and their paths) and the receiving animals (hearing, 
motivation, experience, demography), and is therefore difficult to 
predict (Southall et al. 2007).The activities of workers in the project 
area may also cause behavioral reactions by marine mammals, such as 
pinnipeds flushing from the jetty or pier or moving farther from the 
disturbance to forage. However, observations of the area show that it 
is unlikely that more than 10 to 20 individuals of pinnipeds would be 
present in the project vicinity at any one time. Therefore, even if 
pinnipeds were flushed from the haul-out, a stampede is very unlikely, 
due to the relatively low number of animals onsite. In addition, 
proposed mitigation and monitoring measures would minimize the startle 
behavior of pinnipeds and prevent the animals from flushing into the 
water.
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could be expected to be biologically significant if the 
change affects growth, survival, or reproduction. Some of these types 
of significant behavioral modifications include: Drastic change in 
diving/surfacing patterns (such as those thought to be causing beaked 
whale strandings due to exposure to military mid-frequency tactical 
sonar); habitat abandonment due to loss of desirable acoustic 
environment; and cessation of feeding or social interaction.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are 
associated with elevated sound levels produced by vibratory pile 
removal and pile driving in the area. However, other potential impacts 
to the surrounding habitat from physical disturbance are also possible.

Potential Impacts on Prey Species

    With regard to fish as a prey source for cetaceans and pinnipeds, 
fish are known to hear and react to sounds and to use sound to 
communicate (Tavolga et al. 1981) and possibly avoid predators (Wilson 
and Dill 2002). Experiments have shown that fish can sense both the 
strength and direction of sound (Hawkins 1981). Primary factors 
determining whether a fish can sense a sound signal, and potentially 
react to it, are the frequency of the signal and the strength of the 
signal in relation to the natural background noise level.
    The level of sound at which a fish will react or alter its behavior 
is usually well above the detection level. Fish have been found to 
react to sounds when the sound level increased to about 20 dB above the 
detection level of 120 dB (Ona 1988); however, the response threshold 
can depend on the time of year and the fish's physiological condition 
(Engas et al. 1993). In general, fish react more strongly to pulses of 
sound rather than non-pulse signals (such as noise from pile driving) 
(Blaxter et al. 1981), and a quicker alarm response is elicited when 
the sound signal intensity rises rapidly compared to sound rising more 
slowly to the same level.
    During the coastal construction only a small fraction of the 
available habitat would be ensonified at any given time. Disturbance to 
fish species would be short-term and fish would return to their pre-
disturbance behavior once the pile driving activity ceases. Thus, the 
proposed construction would have little, if any, impact on the 
abilities of marine mammals to feed in the area where construction work 
is planned.
    Finally, the time of the proposed construction activity would avoid 
the

[[Page 11653]]

spawning season of the ESA-listed salmonid species.

Water and Sediment Quality

    Short-term turbidity is a water quality effect of most in-water 
work, including pile driving. WSDOT must comply with state water 
quality standards during these operations by limiting the extent of 
turbidity to the immediate project area.
    Roni and Weitkamp (1996) monitored water quality parameters during 
a pier replacement project in Manchester, Washington. The study 
measured water quality before, during and after pile driving. The study 
found that construction activity at the site had ``little or no effect 
on dissolved oxygen, water temperature and salinity'', and turbidity 
(measured in nephelometric turbidity units [NTU]) at all depths nearest 
the construction activity was typically less than 1 NTU higher than 
stations farther from the project area throughout construction.
    Similar results were recorded during pile removal operations at two 
WSDOT ferry facilities. At the Friday Harbor terminal, localized 
turbidity levels (from three timber pile removal events) were generally 
less than 0.5 NTU higher than background levels and never exceeded 1 
NTU. At the Eagle Harbor maintenance facility, local turbidity levels 
(from removal of timber and steel piles) did not exceed 0.2 NTU above 
background levels. In general, turbidity associated with pile 
installation is localized to about a 25-foot radius around the pile 
(Everitt et al. 1980).
    Cetaceans are not expected to be close enough to the Anacortes 
ferry terminal to experience turbidity, and any pinnipeds will be 
transiting the terminal area and could avoid localized areas of 
turbidity. Therefore, the impact from increased turbidity levels is 
expected to be discountable to marine mammals.

Passage Obstructions

    Pile removal and driving operations at the Anacortes ferry terminal 
will not obstruct movements of marine mammals. The operations at 
Anacortes will occur within 152 m (500 ft) of the shoreline, leaving 
3.2 km (2.0 mi) of Puget Sound for marine mammals to pass.
    A construction barge will be used during the project. The barge 
will be anchored and/or spudded. No dynamic positioning system (DPS) 
will be used.

Proposed Mitigation Measures

    In order to issue an incidental take authorization under section 
101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods 
of taking pursuant to such activity, and other means of effecting the 
least practicable adverse impact on such species or stock and its 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance, and on the availability of such species 
or stock for taking for certain subsistence uses.
    For WSDOT's proposed Anacortes tie-up slips dolphin and wingwall 
replacement project, WSDOT worked with NMFS and proposed the following 
mitigation measures to minimize the potential impacts to marine mammals 
in the project vicinity. The primary purposes of these mitigation 
measures are to minimize sound levels from the activities, to monitor 
marine mammals within designated zones of influence (ZOI) corresponding 
to NMFS' current Level B harassment thresholds and, if marine mammals 
with the ZOI appear disturbed by the work activity, to initiate 
immediate shutdown or power down of the piling hammer, making it very 
unlikely potential injury or TTS to marine mammals would occur and 
ensuring that Level B behavioral harassment of marine mammals would be 
reduced to the lowest level practicable.

No Impact Pile Driving

    To avoid potential injury to marine mammals, only vibratory pile 
hammer will be used for pile removal and pile driving.

Time Restriction

    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted. In addition, all in-water 
construction will be limited to the period between September 1, 2015, 
and February 15, 2016.

Establishment of Level B Harassment Zones of Influence

    Because WSDOT will not use impact pile driving for the proposed 
construction work, no Level A exclusion zone exists for marine mammals. 
NMFS currently uses received level of 120 dB as the onset of Level B 
harassment from non-impulse sources such as vibratory pile driving and 
pile removal. However, the in-water background noise data taken within 
the functional hearing group of relevant species showed that at the 
Anacortes ferry terminal area, the median day-time cumulative 
distribution function (CDF) for ambient noise levels range between 123 
and 133 dB<INF>RMS</INF> re 1 [micro]Pa (WSDOT 2014). Therefore, the 
123-dB level will be used as the onset of Level B behavioral harassment 
at the Anacortes project area because this level will include marine 
mammals in all functional hearing groups.
    Before the commencement of in-water pile driving activities, WSDOT 
shall establish Level B behavioral harassment zones of influence (ZOIs) 
where received underwater sound pressure levels (SPLs) are higher than 
123 dB (rms) re 1 [micro]Pa for vibratory pile driving.
    The 123-dB Level B harassment ZOIs from in-water vibratory pile 
removal and pile driving are modeled based on in-water measurements at 
the WSDOT Port Townsend Ferry Terminal (Laughlin 2011) and Friday 
Harbor Ferry Terminal (Laughlin 2010) constructions. These modeled 
results are presented in Table 4 below.

    Table 4--Modeled ZOI Distances to Level B Behavioral Harassment From the Pile Driving and Pile Removal at
                                         WSDOT's Anacortes Project Area
----------------------------------------------------------------------------------------------------------------
                                                                                In-water ZOI
      Vibratory pile type/method                     Threshold                      (km)         In-air ZOI  (m)
----------------------------------------------------------------------------------------------------------------
12-inch timber removal................  123 dBRMS re 1 [micro]Pa                           1.6  ................
24-inch steel removal/driving.........  123 dBRMS re 1 [micro]Pa                           4.0  ................
30-inch steel driving.................  123 dBRMS re 1 [micro]Pa                          26    ................
36-inch steel driving.................  123 dBRMS re 1 [micro]Pa                          40    ................
All piles/in-air (harbor seals).......  90 dBRMS re 20 [micro]Pa             .................                30
All piles/in-air (other pinnipeds)....  100 dBRMS re 20 [micro]Pa            .................                10
----------------------------------------------------------------------------------------------------------------


[[Page 11654]]

Soft Start

    WSDOT will implement ``soft start'' (or ramp up) to reduce 
potential startling behavioral responses from marine mammals. Soft 
start requires contractors to initiate noise from the vibratory hammer 
for 15 seconds at reduced energy followed by a 1-minute waiting period. 
The procedure will be repeated two additional times. Each day, WSDOT 
will use the soft-start technique at the beginning of pile driving, or 
if pile driving has ceased for more than one hour.

Shutdown Measures

    WSDOT shall implement shutdown measures if southern resident killer 
whales are sighted within the vicinity of the project area and are 
approaching the Level B harassment zone (zone of influence, or ZOI) 
during in-water construction activities.
    If a killer whale approaches the ZOI during pile driving or 
removal, and it is unknown whether it is a Southern Resident killer 
whale or a transient killer whale, it shall be assumed to be a Southern 
Resident killer whale and WSDOT shall implement the shutdown measure.
    If a Southern Resident killer whale or an unidentified killer whale 
enters the ZOI undetected, in-water pile driving or pile removal shall 
be suspended until the whale exits the ZOI to avoid further level B 
harassment.
    Further, WSDOT shall implement shutdown measures if the number of 
any allotted marine mammal takes reaches the limit under the IHA (if 
issued), if such marine mammals are sighted within the vicinity of the 
project area and are approaching the Level B harassment zone during in-
water construction activities.

Coordination With Local Marine Mammal Research Network

    Prior to the start of pile driving, the Orca Network and/or Center 
for Whale Research will be contacted to find out the location of the 
nearest marine mammal sightings. The Orca Sightings Network consists of 
a list of over 600 (and growing) residents, scientists, and government 
agency personnel in the U.S. and Canada. Sightings are called or 
emailed into the Orca Network and immediately distributed to other 
sighting networks including: The Northwest Fisheries Science Center of 
NOAA Fisheries, the Center for Whale Research, Cascadia Research, the 
Whale Museum Hotline and the British Columbia Sightings Network.
    `Sightings' information collected by the Orca Network includes 
detection by hydrophone. The SeaSound Remote Sensing Network is a 
system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study orca 
communication, in-water noise, bottom fish ecology and local climatic 
conditions. A hydrophone at the Port Townsend Marine Science Center 
measures average in-water sound levels and automatically detects 
unusual sounds. These passive acoustic devices allow researchers to 
hear when different marine mammals come into the region. This acoustic 
network, combined with the volunteer (incidental) visual sighting 
network allows researchers to document presence and location of various 
marine mammal species.
    With this level of coordination in the region of activity, WSDOT 
will be able to get real-time information on the presence or absence of 
whales before starting any pile driving.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:

<bullet> The manner in which, and the degree to which, the successful 
implementation of the measure is expected to minimize adverse impacts 
to marine mammals
<bullet> The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned
<bullet> The practicability of the measure for applicant implementation

    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of pile driving and pile removal or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only).
    (3) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of pile driving and pile removal, or other 
activities expected to result in the take of marine mammals (this goal 
may contribute to 1, above, or to reducing harassment takes only).
    (4) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of pile driving, or other activities expected to result in the 
take of marine mammals (this goal may contribute to a, above, or to 
reducing the severity of harassment takes only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    (6) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammals species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    In order to issue an incidental take authorization (ITA) for an 
activity, section 101(a)(5)(D) of the MMPA states that NMFS must set 
forth, ``requirements pertaining to the monitoring and reporting of 
such taking.'' The MMPA implementing regulations at 50 CFR 216.104 
(a)(13) indicate that requests for ITAs 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 in the proposed action area. WSDOT submitted a marine mammal 
monitoring plan as part of the IHA application. It can be found at 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The plan may be 
modified or supplemented based on comments or new information received

[[Page 11655]]

from the public during the public comment period.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (1) An increase in the probability of detecting marine mammals, 
both within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    (2) An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of pile driving that we associate with 
specific adverse effects, such as behavioral harassment, TTS, or PTS;
    (3) An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
    [ssquf] Behavioral observations in the presence of stimuli compared 
to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Distribution and/or abundance comparisons in times or areas 
with concentrated stimuli versus times or areas without stimuli;
    (4) An increased knowledge of the affected species; and
    (5) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.

Proposed Monitoring Measures

    WSDOT shall employ NMFS-approved protected species observers (PSOs) 
to conduct marine mammal monitoring for its Anacortes tie-up dolphins 
and wingwall replacement project. The PSOs will observe and collect 
data on marine mammals in and around the project area for 30 minutes 
before, during, and for 30 minutes after all pile removal and pile 
installation work. If a PSO observes a marine mammal within a ZOI that 
appears to be disturbed by the work activity, the PSO will notify the 
work crew to initiate shutdown measures.
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). 
Due to the different sizes of ZOIs from different pile sizes, two 
different ZOIs and monitoring protocols corresponding to a specific 
pile size will be established. Specifically, during vibratory timber 
removal, and 24'' steel vibratory pile driving and removal, one land-
based PSO will monitor the area from the terminal work site, and one 
boat with a driver and a PSO will travel through the monitoring area. 
During 30/36'' vibratory pile driving, one land-based PSO will monitor 
the area from the terminal work site, and two boats with two drivers 
and two PSOs will travel through the monitoring area (see Figures 2 and 
3 in WSDOT's Marine Mammal Monitoring Plan).
    Data collection during marine mammal monitoring will consist of a 
count of all marine mammals by species, a description of behavior (if 
possible), location, direction of movement, type of construction that 
is occurring, time that pile replacement work begins and ends, any 
acoustic or visual disturbance, and time of the observation. 
Environmental conditions such as weather, visibility, temperature, tide 
level, current, and sea state would also be recorded.

Proposed Reporting Measures

    WSDOT would be required to submit a final monitoring report within 
90 days after completion of the construction work or the expiration of 
the IHA (if issued), whichever comes earlier. This report would detail 
the monitoring protocol, summarize the data recorded during monitoring, 
and estimate the number of marine mammals that may have been harassed. 
NMFS would have an opportunity to provide comments on the report, and 
if NMFS has comments, WSDOT would address the comments and submit a 
final report to NMFS within 30 days.
    In addition, NMFS would require WSDOT to notify NMFS' Office of 
Protected Resources and NMFS' Stranding Network within 48 hours of 
sighting an injured or dead marine mammal in the vicinity of the 
construction site. WSDOT shall provide NMFS with the species or 
description of the animal(s), the condition of the animal(s) (including 
carcass condition, if the animal is dead), location, time of first 
discovery, observed behaviors (if alive), and photo or video (if 
available).
    In the event that WSDOT finds an injured or dead marine mammal that 
is not in the vicinity of the construction area, WSDOT would report the 
same information as listed above to NMFS as soon as operationally 
feasible.
Estimated Take by Incidental Harassment
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].
    As discussed above, in-water pile removal and pile driving 
(vibratory and impact) generate loud noises that could potentially 
harass marine mammals in the vicinity of WSDOT's proposed Anacortes 
Ferry Terminal tie-up slip dolphin and wingwall replacement project.
    As mentioned earlier in this document, currently NMFS uses 120 dB 
re 1 [micro]Pa and 160 dB re 1 [micro]Pa at the received levels for the 
onset of Level B harassment from non-impulse (vibratory pile driving 
and removal) and impulse sources (impact pile driving) underwater, 
respectively. Table 3 summarizes the current NMFS marine mammal take 
criteria.

                 Table 3--Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater
----------------------------------------------------------------------------------------------------------------
             Criterion                   Criterion definition                        Threshold
----------------------------------------------------------------------------------------------------------------
Level A Harassment (Injury)........  Permanent Threshold Shift    180 dB re 1 [micro]Pa (cetaceans)
                                      (PTS) (Any level above      190 dB re 1 [micro]Pa (pinnipeds)
                                      that which is known to      root mean square (rms)
                                      cause TTS).
Level B Harassment.................  Behavioral Disruption (for   160 dB re 1 [micro]Pa (rms)
                                      impulse noises).
Level B Harassment.................  Behavioral Disruption (for   120 dB re 1 [micro]Pa (rms)
                                      non-impulse noise).
----------------------------------------------------------------------------------------------------------------


[[Page 11656]]

    As explained above, ZOIs will be established that encompass the 
areas where received underwater sound pressure levels (SPLs) exceed the 
applicable thresholds for Level B harassment. In the case of WSDOT's 
proposed Anacortes construction project, the Level B harassment ZOI for 
non-impulse noise sources will be at the received level at 123 dB, 
which is the median ambient noise level for the high-frequency 
cetacean. There will not be a zone for Level A harassment in this case, 
because source levels from vibratory hammer do not exceed the threshold 
for Level A harassment, and no impact hammer will be used in the 
proposed project.

Sound Levels From Proposed Construction Activity

    As mentioned earlier, the 123-dB Level B harassment ZOIs are 
modeled based on in-water measurements at the WSDOT Port Townsend Ferry 
Terminal (Laughlin 2011) and Friday Harbor Ferry Terminal (Laughlin 
2010) constructions (Table 4). Incidental take is calculated for each 
species by estimating the likelihood of a marine mammal being present 
within a ZOI during active pile removal/driving. Expected marine mammal 
presence is determined by past observations and general abundance near 
the Anacortes ferry terminal during the construction window. Ideally, 
potential take is estimated by multiplying the area of the ZOI by the 
local animal density. This provides an estimate of the number of 
animals that might occupy the ZOI at any given moment. However, there 
are no density estimates for any Puget Sound population of marine 
mammal.
    As a result, the take requests were estimated using local marine 
mammal data sets, and information from state and federal agencies. All 
haulout and observation data available are summarized in Section 3 of 
WSDOT's IHA application. Project duration is presented in Section 2 of 
WSDOT's IHA application.
    The calculation for marine mammal exposures is estimated by:

Exposure estimate = N (number of animals in the area) * Number of days 
of pile removal/driving activity

    Estimates include Level B acoustical harassment during vibratory 
pile removal and driving. All estimates are conservative, as pile 
removal/driving will not be continuous during the work day. Using this 
approach, a summary of estimated takes of marine mammals incidental to 
WSDOT's Anacortes Ferry Terminal tip-up dolphins and wingwall 
replacement work are provided in Table 5.

Table 5--Estimated Numbers of Marine Mammals That May Be Exposed to Received Pile Removal Levels Above 123 dB re
                                                 1 [mu]Pa (rms)
----------------------------------------------------------------------------------------------------------------
                                                        Estimated marine
                       Species                            mammal takes        Abundance           Percentage
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal..................................                900             14,612                6.0
California sea lion..................................                180            296,750                0.06
Steller sea lion.....................................                360             52,847                0.7
Northern elephant seal...............................                 72            124,000                0.06
Harbor porpoise......................................                612             10,682                5.7
Dall's porpoise......................................                108             42,000                0.3
Killer whale, transient..............................                 70                354               20
Killer whale, Southern Resident......................                  4                 81                5.0
Pacific white-sided dolphin..........................                360             25,233                1.4
Gray whale...........................................                 36             18,017                0.2
Humpback whale.......................................                 30              2,043                1.5
Minke whale..........................................                 10            202-600                1.7-5
----------------------------------------------------------------------------------------------------------------

Analysis and Preliminary Determinations

Negligible Impact

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment 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 behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, and effects on habitat.
    WSDOT's proposed Anacortes Ferry Terminal tie-up dolphins and 
wingwall replacement project would involve vibratory pile removal and 
pile driving activities. Elevated underwater noises are expected to be 
generated as a result of these activities; however, these noises are 
expected to result in no mortality or Level A harassment and limited 
Level B harassment of marine mammals. WSDOT would not use impact hammer 
for pile driving, thus eliminating the potential for injury (including 
PTS) and TTS from noise impact. For vibratory pile removal and pile 
driving, noise levels are not expected to reach the level that may 
cause TTS, injury (including PTS), or mortality to marine mammals. 
Therefore, NMFS does not expect that any animals would experience Level 
A harassment (including injury or PTS) or Level B harassment in the 
form of TTS from being exposed to in-water pile removal and pile 
driving associated with WSDOT's construction project.
    Additionally, the sum of noise from WSDOT's proposed Anacortes 
Ferry Terminal tie-up dolphins and wingwall replacement construction 
activities is confined to a limited area by surrounding landmasses; 
therefore, the noise generated is not expected to contribute to 
increased ocean ambient noise. In addition, due to shallow water depths 
in the project area, underwater sound propagation of low-frequency 
sound (which is the major noise source from pile driving) is expected 
to be poor.
    In addition, WSDOT's proposed activities are localized and of short 
duration. The entire project area is limited to WSDOT's Anacortes Ferry 
Terminal construction work. The entire

[[Page 11657]]

project would involve the removal of 272 existing piles and 
installation of 81 piles. The duration for the construction would 
involve 68 hours in 9 days for pile removal and 27 hours in 27 days for 
pile installation. These low-intensity, localized, and short-term noise 
exposures may cause brief startle reactions or short-term behavioral 
modification by the animals. These reactions and behavioral changes are 
expected to subside quickly when the exposures cease. Moreover, the 
proposed mitigation and monitoring measures are expected to reduce 
potential exposures and behavioral modifications even further. 
Additionally, no important feeding and/or reproductive areas for marine 
mammals are known to be near the proposed action area. Therefore, the 
take resulting from the proposed Anacortes Ferry Terminal tie-up 
dolphins and wingwall replacement work is not reasonably expected to, 
and is not reasonably likely to, adversely affect the marine mammal 
species or stocks through effects on annual rates of recruitment or 
survival.
    The proposed project area is not a prime habitat for marine 
mammals, nor is it considered an area frequented by marine mammals. 
Therefore, behavioral disturbances that could result from anthropogenic 
noise associated with WSDOT's construction activities are expected to 
affect only a small number of marine mammals on an infrequent and 
limited basis.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' section. The 
project activities would not modify existing marine mammal habitat. The 
activities may cause some fish to leave the area of disturbance, thus 
temporarily impacting marine mammals' foraging opportunities in a 
limited portion of the foraging range; but, because of the short 
duration of the activities and the relatively small area of the habitat 
that may be affected, the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    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 WSDOT's Anacortes Ferry Terminal tie-up dolphins and 
wingwall replacement project will have a negligible impact on the 
affected marine mammal species or stocks.

Small Number

    Based on analyses provided above, it is estimated that 
approximately 900 harbor seals, 180 California sea lions, 360 Steller 
sea lions, 72 northern elephant seals, 612 harbor porpoises, 108 Dall's 
porpoises, 70 transient killer whales, 4 Southern Resident killer 
whales, 360 Pacific white-sided dolphins, 36 gray whales, 30 humpback 
whales, and 10 minke whales could be exposed to received noise levels 
that could cause Level B behavioral harassment from the proposed 
construction work at the Anacortes Ferry Terminal in Washington State. 
These numbers represent approximately 0.06% to 20% of the populations 
of these species that could be affected by Level B behavioral 
harassment, respectively (see Table 5 above), which are small 
percentages relative to the total populations of the affected species 
or stocks.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, which are expected to reduce the number of marine mammals 
potentially affected by the proposed action, NMFS preliminarily finds 
that small numbers of marine mammals will be taken relative to the 
populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no subsistence uses of marine mammals in the proposed 
project area; and, thus, no subsistence uses impacted 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.

Endangered Species Act (ESA)

    The humpback whale and the Southern Resident stock of killer whale 
are the only marine mammal species currently listed under the ESA that 
could occur in the vicinity of WSDOT's proposed construction projects. 
NMFS' Permits and Conservation Division has initiated consultation with 
NMFS' Protected Resources Division under section 7 of the ESA on the 
issuance of an IHA to WSDOT under section 101(a)(5)(D) of the MMPA for 
this activity. Consultation will be concluded prior to a determination 
on the issuance of an IHA.

National Environmental Policy Act (NEPA)

    NMFS prepared a draft Environmental Assessment (EA) for the 
proposed issuance of an IHA, pursuant to NEPA, to determine whether or 
not this proposed activity may have a significant effect on the human 
environment. This analysis will be completed prior to the issuance or 
denial of this proposed IHA.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to WSDOT for conducting the Anacortes Ferry Terminal tie-
up dolphins and wingwall replacement project, provided the previously 
mentioned mitigation, monitoring, and reporting requirements are 
incorporated. The proposed IHA language is provided next.
    1. This Authorization is valid from September 1, 2015, through 
August 31, 2016.
    2. This Authorization is valid only for activities associated in-
water construction work at the Anacortes Ferry Terminal tie-up dolphins 
and wingwall replacement project in the State of Washington.
    3. (a) The species authorized for incidental harassment takings, 
Level B harassment only, are: Pacific harbor seal (Phoca vitulina 
richardsi), California sea lion (Zalophus californianus), Steller sea 
lion (Eumetopias jubatus), northern elephant seals (Mirounga 
angustirostris), transient and Southern Resident killer whales (Orcinus 
orca), Pacific white-sided dolphin (Lagenorhynchus obliquidens), gray 
whale (Eschrichtius robustus), humpback whale (Megaptera novaeangliae), 
harbor porpoise (Phocoena phocoena), and Dall's porpoise (Phocoena 
dali).
    (b) The authorization for taking by harassment is limited to the 
following acoustic sources and from the following activities:
    <bullet> Vibratory pile driving;
    <bullet> Vibratory pile removal; and
    <bullet> Work associated with above piling activities.
    (c) The taking of any marine mammal in a manner prohibited under 
this Authorization must be reported within 24 hours of the taking to 
the West Coast Administrator (206-526-6150), National Marine Fisheries 
Service (NMFS) and the Chief of the Permits and Conservation Division, 
Office of Protected Resources, NMFS, at (301) 427-8401, or her designee 
(301-427-8418).

[[Page 11658]]

    4. The holder of this Authorization must notify the Chief of the 
Permits and Conservation Division, Office of Protected Resources, at 
least 48 hours prior to the start of activities identified in 3(b) 
(unless constrained by the date of issuance of this Authorization in 
which case notification shall be made as soon as possible).
    5. Prohibitions
    (a) The taking, by incidental harassment only, is limited to the 
species listed under condition 3(a) above and by the numbers listed in 
Table 5. The taking by Level A harassment, injury or death of these 
species or the taking by harassment, injury or death of any other 
species of marine mammal is prohibited and may result in the 
modification, suspension, or revocation of this Authorization.
    (b) The taking of any marine mammal is prohibited whenever the 
required protected species observers (PSOs), required by condition 
7(a), are not present in conformance with condition 7(a) of this 
Authorization.
    6. Mitigation
    (a) Time Restriction
    In-water construction work shall occur only during daylight hours, 
when visual monitoring of marine mammals can be conducted.
    (b) Establishment of Level B Harassment Zones of Influence
    Before the commencement of in-water pile driving activities, WSDOT 
shall establish Level B behavioral harassment zones of influence (ZOIs) 
where received underwater sound pressure levels (SPLs) are higher than 
123 dB (rms) re 1 [micro]Pa. The modeled isopleths for ZOIs are listed 
in Table 4.
    (c) Monitoring of marine mammals shall take place starting 30 
minutes before pile driving begins until 30 minutes after pile driving 
ends.
    (d) Soft Start
    (i) When there has been downtime of 30 minutes or more without pile 
driving, the contractor will initiate the driving with ramp-up 
procedures described below.
    (ii) Soft start requires contractors to initiate noise from the 
vibratory hammer for 15 seconds at reduced energy followed by a 1-
minute waiting period. The procedure will be repeated two additional 
times. Each day, WSDOT will use the soft-start technique at the 
beginning of pile driving, or if pile driving has ceased for more than 
one hour.
    (e) Shutdown Measures
    (i) WSDOT shall implement shutdown measures if southern resident 
killer whales (SRKWs) are sighted within the vicinity of the project 
area and are approaching the Level B harassment zone (zone of 
influence, or ZOI) during in-water construction activities.
    (ii) If a killer whale approaches the ZOI during pile driving or 
removal, and it is unknown whether it is a SRKW or a transient killer 
whale, it shall be assumed to be a SRKW and WSDOT shall implement the 
shutdown measure identified in 6(e)(i).
    (iii) If a SRKW enters the ZOI undetected, in-water pile driving or 
pile removal shall be suspended until the SRKW exits the ZOI to avoid 
further level B harassment.
    (iv) WSDOT shall implement shutdown measures if the number of any 
allotted marine mammal takes reaches the limit under the IHA, if such 
marine mammals are sighted within the vicinity of the project area and 
are approaching the Level B harassment zone during pile removal 
activities.
    (v) WSDOT shall implement shutdown measures if marine mammals with 
the ZOI appear disturbed by the work activity.
    (f) Coordination With Local Marine Mammal Research Network
    Prior to the start of pile driving, WSDOT will contact the Orca 
Network and/or Center for Whale Research to get real-time information 
on the presence or absence of whales before starting any pile driving.
    7. Monitoring:
    (a) Protected Species Observers
    WSDOT shall employ NMFS-approved PSOs to conduct marine mammal 
monitoring for its construction project.
    (i) Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance. Use of binoculars 
will be required to correctly identify the target.
    (ii) Experience or training in the field identification of marine 
mammals (cetaceans and pinnipeds).
    (iii) Sufficient training, orientation or experience with the 
construction operation to provide for personal safety during 
observations.
    (iv) 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.
    (v) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience).
    (vi) Writing skills sufficient to prepare a report of observations 
that would include such information as the number and type of marine 
mammals observed; the behavior of marine mammals in the project area 
during construction, dates and times when observations were conducted; 
dates and times when in-water construction activities were conducted; 
and dates and times when marine mammals were present at or within the 
defined ZOI.
    (b) Monitoring Protocols: PSOs shall be present on site at all 
times during pile removal and driving.
    (i) A range finder or hand-held global positioning system device 
will be used to ensure that the 123 dB<INF>rms</INF> re 1 [mu]Pa Level 
B behavioral harassment ZOI is monitored.
    (ii) A 30-minute pre-construction marine mammal monitoring will be 
required before the first pile driving or pile removal of the day. A 
30-minute post-construction marine mammal monitoring will be required 
after the last pile driving or pile removal of the day. If the 
constructors take a break between subsequent pile driving or pile 
removal for more than 30 minutes, then additional pre-construction 
marine mammal monitoring will be required before the next start-up of 
pile driving or pile removal.
    (iii) Marine mammal visual monitoring will be conducted for 
different ZOIs based on different sizes of piles being driven or 
removed.
    (A) For vibratory timber removal, and 24'' steel vibratory pile 
driving and removal, one land-based PSO will monitor the area from the 
terminal work site, and one boat with a driver and a PSO will travel 
through the monitoring area.
    (B) For 30''/36'' vibratory pile driving, one land-based PSO will 
monitor the area from the terminal work site, and two boats with two 
drivers and two PSOs will travel through the monitoring area.
    (iv) If marine mammals are observed, the following information will 
be documented:
    (A) Species of observed marine mammals;
    (B) Number of observed marine mammal individuals;
    (C) Behavioral of observed marine mammals;
    (D) Location within the ZOI; and
    (E) Animals' reaction (if any) to pile-driving activities.
    8. Reporting:
    (a) WSDOT shall provide NMFS with a draft monitoring report within 
90 days of the conclusion of the construction work or within 90 days of 
the expiration of the IHA, whichever comes first. This report shall 
detail the monitoring protocol, summarize the data recorded during 
monitoring, and estimate the number of marine mammals that may have 
been harassed.

[[Page 11659]]

    (b) If comments are received from the NMFS West Coast Regional 
Administrator or NMFS Office of Protected Resources on the draft 
report, a final report shall be submitted to NMFS within 30 days 
thereafter. If no comments are received from NMFS, the draft report 
will be considered to be the final report.
    (c) In the unanticipated event that the construction activities 
clearly cause the take of a marine mammal in a manner prohibited by 
this Authorization (if issued), such as an injury, serious injury, or 
mortality, WSDOT shall immediately cease all operations and immediately 
report the incident to the Chief, Permits and Conservation Division, 
Office of Protected Resources, NMFS, and the West Coast Regional 
Stranding Coordinators. The report must include the following 
information:
    (i) Time, date, and location (latitude/longitude) of the incident;
    (ii) Description of the incident;
    (iii) Status of all sound source use in the 24 hours preceding the 
incident;
    (iv) Environmental conditions (e.g., wind speed and direction, sea 
state, cloud cover, visibility, and water depth);
    (v) Description of marine mammal observations in the 24 hours 
preceding the incident;
    (vi) Species identification or description of the animal(s) 
involved;
    (vii) The fate of the animal(s); and
    (viii) Photographs or video footage of the animal (if equipment is 
available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with WSDOT to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. WSDOT may not resume their 
activities until notified by NMFS via letter, email, or telephone.
    (E) In the event that WSDOT discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
WSDOT will immediately report the incident to the Chief, Permits and 
Conservation Division, Office of Protected Resources, NMFS, and the 
West Coast Regional Stranding Coordinators. The report must include the 
same information identified above. Activities may continue while NMFS 
reviews the circumstances of the incident. NMFS will work with WSDOT to 
determine whether modifications in the activities are appropriate.
    (F) In the event that WSDOT discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), WSDOT shall report the incident to 
the Chief, Permits and Conservation Division, Office of Protected 
Resources, NMFS, and the West Coast Regional Stranding Coordinators, 
within 24 hours of the discovery. WSDOT shall provide photographs or 
video footage (if available) or other documentation of the stranded 
animal sighting to NMFS and the Marine Mammal Stranding Network. WSDOT 
can continue its operations under such a case.
    9. This Authorization may be modified, suspended or withdrawn if 
the holder fails to abide by the conditions prescribed herein or if the 
authorized taking is having more than a negligible impact on the 
species or stock of affected marine mammals, or if there is an 
unmitigable adverse impact on the availability of such species or 
stocks for subsistence uses.
    10. A copy of this Authorization and the Incidental Take Statement 
must be in the possession of each contractor who performs the 
construction work at the Anacortes Ferry Terminals.
    11. WSDOT is required to comply with the Terms and Conditions of 
the Incidental Take Statement corresponding to NMFS' Biological 
Opinion.

    Dated: February 25, 2015.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2015-04425 Filed 3-3-15; 8:45 am]
BILLING CODE 3510-22-P


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