[Federal Register Volume 75, Number 213 (Thursday, November 4, 2010)]
[Notices]
[Pages 67951-67956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27883]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RIN 0648-XZ78]


Takes of Marine Mammals Incidental to Specified Activities; 
Piling and Structure Removal in Woodard Bay Natural Resources 
Conservation Area, Washington

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

ACTION: Notice; issuance of incidental harassment authorization.

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SUMMARY: In accordance with regulations implementing the Marine Mammal 
Protection Act (MMPA), as amended, notification is hereby given that an 
Incidental Harassment Authorization (IHA) to take marine mammals, by 
harassment, incidental to derelict creosote piling and structure 
removal within the Woodard Bay Natural Resources Conservation Area 
(NRCA) has been issued to the Washington State Department of Natural 
Resources (DNR).

DATES: This authorization is effective from November 1, 2010-February 
28, 2011.

ADDRESSES: A copy of the application, IHA, and a list of references 
used in this document may be obtained by writing to P. Michael Payne, 
Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225, by telephoning the contact 
listed here, or visiting NMFS Web site at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 713-2289.

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.
    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 United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
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.
    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].

Summary of Request

    On June 9, 2010, NMFS received an application from the WA DNR 
requesting authorization to take, by harassment, small numbers of 
marine mammals incidental to derelict creosote piling and structure 
removal associated with a habitat restoration project within the 
Woodard Bay NRCA, Washington. The specified activity includes removal 
of approximately 615 timber pilings and a trestle located in Woodard 
Bay and a portion of pier superstructure located at the mouth of 
Chapman Bay. Pilings will be removed by vibratory hammer extraction 
methods and structures will be removed via cable lifting. In addition, 
approximately 25 nest boxes for purple martins will be relocated from 
removed pilings to pilings that are retained for seal habitat and 
buffer, using a small boat if necessary and will require a battery 
powered drill.
    Harbor seals have been utilizing the remnant log boom structures at 
Woodard Bay NRCA as haul-out habitat for resting, pupping and molting 
for more than 30 years. These booms are situated among the piles and 
structure planned for removal. The WA DNR anticipates harbor seals will 
flush into the water upon crew arrival and onset of pile and structure 
removal activities; hence, harbor seals may be harassed during pile 
removal activities. Since the activity has the potential to take marine 
mammals, a marine mammal take authorization under the MMPA is 
warranted.

Description of the Specified Activity

    The Woodard Bay NRCA, located within Henderson Inlet in southern 
Puget Sound, was designated by the Washington State Legislature in 1987 
to

[[Page 67952]]

protect a large, intact complex of nearshore habitats and related 
biological communities, and to provide opportunities for low-impact 
public use and environmental education for the people of Washington. 
The site includes the former Weyerhaeuser South Bay Log Dump, which 
operated from the 1920s until the 1980s. The remnant structures from 
the log dump, including several hundred creosoted pilings, and a 
trestle and pier, continue to negatively impact nearshore ecosystems 
protected by the conservation area. Therefore, the DNR will remove 
these dilapidated structures to enhance the processes, functions, and 
structures of the nearshore ecosystems. A few of the remnant log booms 
from dumping operations have supported a healthy population of harbor 
seals for more than 30 years by providing haulout habitat. However, 
seals concentrate themselves and primarily haul out at only two 
locations within the NRCA (see Figure 4 in application).
    Approximately 615 (average 12 inch diameter) pilings will be 
removed near but not directly adjacent to haulouts. An average of 30 
pilings per day will be removed via vibratory hammer extraction 
methods. Operations will begin on the pilings and structures that are 
furthest from the seal haul-out so that there is an opportunity for the 
seals to adjust to the presence of the contractors and their equipment. 
In addition, no pilings within 30 yards (27 m) of booms used as seal 
haulout habitat will be removed. The DNR estimates it will take 
approximately 1 minute to vibrate the piling free from the substrate, 
after which a crane will be used to lift the pile out of the water. 
Therefore, the vibratory hammer will operate for only 30 intermittent 
minutes daily. Vibratory extraction operations will occur for 
approximately 21 days over the 4-month work window (November 1 and 
February 28). Other work days will be spent removing pilings associated 
with the trestle, which is over 850 m from the closest haulout, and 
pier superstructure, which does not involve vibratory extraction. A 
complete description of the specified activity can be found in the 
proposed IHA notice for this action (75 FR 48941; August 12, 2010).
    Approximately 25 purple martin nest boxes will be relocated from 
the removed piles to the pilings that support or surround the haul-out 
area. This activity will only require a battery powered drill, is 
expected to take 2 days, and could also result in flushing the seals 
from the haulout. Crew will be required to complete this activity 
during the days when they are already working within 100 yards (91 m) 
of the haulout, possibly using a separate boat, so that no additional 
work days near the haulout are necessary. Presence of crew relocating 
nest boxes may result in behavioral harassment of seals. However, 
because this will be completed in tandem with pile removal, no 
substantial additional harassment is anticipated.

Comments and Responses

    A notice of receipt and request for public comment on the Federal 
Register notice of proposed authorization was published on August 12, 
2010 (75 FR 48941). During the 30-day public comment period, NMFS 
received comments from the Marine Mammal Commission (Commission) on the 
proposed IHA. No comments were received by any other members of the 
public.
    Comment 1: The Commission recommended that NMFS require that the 
applicant provide consistent monitoring beginning 30 minutes before all 
daily activities are initiated and ending 30 minute after all daily 
activities cease.
    Response: NMFS does not agree that monitoring need be conducted at 
all times during this low-level activity as there is no potential 
serious injury or mortality and the probability of an animal being 
physically injured from the equipment is extremely low if not 
discountable. In addition, no other marine mammal species are present 
within the action area, and are therefore not likely to be affected by 
DNR's activities. Marine mammal monitoring will be required at the 
start of the project, twice a week when pile removal is occurring 
within 100 yards of the haul out area, for two days when activities 
move to a new location within the NRCA, during five of the days of work 
on the Chapman Bay Pier, and for at least six other days during the 40 
day work period to be decided when the project schedule is provided by 
the contractor. Similar to scientific research studies, when correcting 
for effort, the DNR and NMFS should be able to adequately determine the 
number of animals taken and impacts of the project on marine mammals 
based on the monitoring plan. Should extreme reactions of seals occur 
(e.g., abandonment of the haulout) at any time during the project, DNR 
will stop removal activities and consult with NMFS. However, as 
described in the proposed IHA notice, based on previous scientific 
disturbance studies at NRCA, extreme reactions are not anticipated.
    Comment 2: The Commission recommended that NMFS require the 
applicant to measure sound pressure levels associated with vibratory 
extraction to ensure source levels do not have the potential to cause 
injury.
    Response: There are no known acoustic data available on source 
levels for timber pile extraction using a vibratory hammer. Based on 
discussion later in this document (see Effects on Marine Mammals), NMFS 
is confident that sound produced by the vibratory extraction of 
derelict timber piles will not approach 190 dB re: 1 microPa (rms), the 
threshold for Level A (injurious) harassment of pinnipeds. As such, 
NMFS is not requiring a sound verification study be conducted.
    Comment 3: The Commission recommended that NMFS condition the IHA 
to give the protected species observer (PSO) the authority to shut down 
the proposed activity if he or she believes that a seal is at risk from 
direct strike.
    Response: Vibratory pile removal is a technique that does not 
require ``strikes'', as stated in the Commission's comment. `Striking' 
is associated with impact pile driving; however, PSOs and equipment 
operators will be alert to any potential marine mammal strike from 
equipment use in general. Should the PSO determine that seals could 
become injured via this form of strike (which would require an 
extremely close approach by an animal), he or she is responsible for 
alerting the equipment operator to the potential close approach. The 
operator is then required to shut-down the equipment as necessary to 
avoid direct strike. The DNR will instruct the hammer operator to abide 
by the PSO's recommendations. In addition, no activity will be 
initiated until or unless seals are at a sufficient distance (i.e., 50 
feet (15 m)) from the activity so as to minimize the risk of direct 
injury from the equipment, piling or structure breaking free or from 
equipment. In summary, PSOs will have the authority to instruct 
operators to shut equipment down in the event that a seal is at risk 
from direct strike by equipment; however, due to the implementation of 
proposed mitigation measures this is an extremely remote possibility.
    Comment 4: The Commission recommended that NMFS continue to require 
ramp-up or soft-starts.
    Response: As described in the proposed IHA notice, DNR is required 
to initiate soft-starts at the onset of pile removal if the hammer has 
the capability to do so.

Description of Marine Mammals in the Area of the Specified Activity

    Harbor seals are the only marine mammal found within the action 
area.

[[Page 67953]]

Harbor seals within the Woodard Bay NRCA belong to the Washington 
Inland Waters stock, which was estimated around 14,612 individuals in 
2003 (NMFS, 2003). Although the stock assessment report for this stock 
has not been updated since 2003, based on trends of other harbor seal 
stocks, this is likely an underestimate. Based on the analyses of 
Jeffries et al. (2003) and Brown et al. (2005), both the Washington and 
Oregon coastal harbor seal stock have likely reached carrying capacity 
and are no longer increasing. Harbor seals are not listed as depleted 
under the MMPA or as endangered or threatened under the ESA. They are 
considered the most abundant resident pinniped species in Puget Sound 
(Lance and Jeffries, 2009).
    The harbor seal population within the NRCA is considered one of the 
healthier ones in southern Puget Sound. Seal numbers have been 
monitored at the site since 1977, when there were less than 50 seals. 
In 1996, the highest count year, there were 600 seals. The average 
maximum annual count between 1977 and 2008 was 315 seals with 410 
counted in August of 2008 (Buettner et al., 2008). Seal numbers peak 
during the pupping season and decline in the winter (when work will be 
conducted). A complete description of harbor seal behavior and habitat 
use within the NRCA can be found in the proposed IHA notice for this 
action (75 FR 48941; August 12, 2010).

Effects on Marine Mammals

    Past disturbance observations at Woodard Bay NRCA have shown that 
seal harassment occurs from non-motorized boats (e.g., recreational 
kayaks and canoes), motorized vessels (e.g., fishing boats), and people 
walking by the haulout (Calambokidis et al., 1991; Buettner et al., 
2008). Results of these studies are described in the proposed IHA 
notice for this action. Based on these studies, NMFS anticipates that 
the presence of crew and use of a vibratory hammer will result in 
behavioral harassment, primarily flushing off log booms, avoiding the 
area, or similar short-term behavioral disturbance.
    The portion of the Chapman Bay Pier that will be removed is more 
than 100 yards (91 m) from the closest haul-out area. This activity is 
expected to take a maximum of 10 days and, although does not involve 
vibratory extraction, has the potential to result in behavioral 
harassment due to the pier's proximity to the haulout. In contrast, the 
Woodard Bay trestle is located on the other side of a peninsula that 
separates Woodard and Chapman Bays and is a distance of more than 850 
yards (777 m) from the closest haulout area. Work here is expected to 
take a maximum of 10 days to complete. Because of the distance from the 
haul-outs, the WA DNR anticipates structure removal at the Woodard Bay 
trestle will not disturb the seals. As such, 10 out of the 40 work days 
are not expected to result in harbor seal harassment.
    Though disturbance of harbor seals is expected to occur primarily 
through physical presence (i.e., crew and vessel presence in vicinity 
of harbor seals), hammer operations may disturb seals in-water. NMFS' 
general in-water harassment thresholds for pinnipeds exposed to non-
pulse noise, such as those produced by vibratory pile extraction, are 
190 dB rms re: 1 microPa as the potential onset of Level A (injurious) 
harassment and 120 dB rms re: 1 microPa as the potential onset of Level 
B (behavioral) harassment. These levels are considered precautionary 
and NMFS is currently revising these thresholds to better reflect the 
most recent scientific data.
    In general, there is a paucity of data on airborne and underwater 
noise levels associated with pile extraction, and there is no known 
information on sound levels produced by vibratory extraction of 
derelict timber piles (as opposed to steel piles used temporarily). In 
addition, there is little data on the vibratory driving of timber 
piles, primarily because it is a seldom-used technique. Though it is 
reasonable to assume that vibratory extraction of timber piles would be 
somewhat quieter than vibratory driving of timber piles of the same 
size, NMFS will not make this assumption in the absence of data. The 
California Department of Transportation (Caltrans) has published data 
showing that vibratory pile driving of 12-24 inch steel piles typically 
results in sound pressure levels (SPLs) around 155-165 dB re: 1 microPa 
(root mean square) ten meters from the source (Caltrans, 2007). Driving 
of steel piles is typically considered to produce higher SPLs than 
driving timber piles. As such, NMFS anticipates that in-water source 
levels for vibratory driving of timber piles would not exceed 165 dB 
(the maximum source SPL for driving 12-24 inch steel piles). 
Considering that (a) vibratory driving of 12-24 inch timber piles would 
not produce SPLs in excess of 165 dB; (b) vibratory extraction may 
produce lower SPLs than vibratory driving, and would not produce higher 
SPLs; and (c) the piles to be extracted are approximately 12 inches in 
diameter (the low end of the size range that produced the 165 dB 
estimate for vibratory driving of timber piles), NMFS concludes 
conservatively that vibratory extraction will not result in sound 
levels near or above 190 dB re: 1 microPa. Therefore, injury will not 
occur, though noise from vibratory extraction will likely exceed 120 dB 
re: 1 microPa near the source and may induce responses in-water such as 
avoidance or alteration of behavioral states at time of exposure.
    There are limited data available on the effects of non-pulse noise 
on pinnipeds in-water; however, field and captive studies to date 
collectively suggest that pinnipeds do not strongly react to exposures 
between 90-140 dB re: 1 microPa; no data exist from exposures at higher 
levels (Southall et al., 2007). Jacobs and Terhune (2002) observed wild 
harbor seal reactions to high frequency acoustic harassment devices 
(ADH) around nine sites. Seals came within 44 m of the active ADH and 
failed to demonstrate any behavioral response when received SPLs were 
estimated at 120-130 dB re: 1 microPa. In a captive study (Kastelein, 
2006), a group of seals were collectively subjected to data collection 
and communication network (ACME) non-pulse sounds at 8-16 kHz. 
Exposures between 80-107 dB re: 1 microPa did not induce strong 
behavioral responses; however, a single observation at 100-110 dB re: 1 
microPa indicated an avoidance response at this level. The group 
returned to baseline conditions shortly following exposure. Southall et 
al. (2007) notes contextual differences between these two studies 
noting that the captive animals were not reinforced with food for 
remaining in the noise fields, whereas free-ranging subjects may have 
been more tolerant of exposures because of motivation to return to a 
safe location or approach enclosures holding prey items. Recall that 
the hammer would only operate for approximately 1 min to break the pile 
free from the substrate, after which the hammer would stop and a crane 
would remove the pile from the water. Therefore, seals will not be 
exposed to extended in-water noise.

Hearing Impairment

    Temporary or permanent hearing impairment is a possibility when 
marine mammals are exposed to very loud sounds. Hearing impairment is 
measured in two forms: temporary threshold shift (TTS) and permanent 
threshold shift (PTS). PTS is considered injurious whereas TTS is not 
as it is temporary and hearing is fully recoverable. There are no 
empirical data for onset of PTS in any marine mammal; therefore, PTS-
onset must be estimated from TTS-onset measurements and from the rate 
of TTS growth with increasing

[[Page 67954]]

exposure levels above the level eliciting TTS-onset. PTS is presumed to 
be likely if the hearing threshold is reduced by >=40 dB (i.e., 40 dB 
of TTS). Due to the low source levels produced by vibratory extraction 
and short duration of vibration (1 min), marine mammals will not be 
exposed to levels that could elicit PTS; therefore, it will not be 
discussed further.

Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during 
exposure to a loud sound (Kryter, 1985). While experiencing TTS, the 
hearing threshold rises and a sound must be louder in order to be 
heard. TTS can last from minutes or hours to, in cases of strong TTS, 
days. For sound exposures at or somewhat above the TTS-onset threshold, 
hearing sensitivity recovers rapidly after exposure to the noise ends. 
Few data on sound levels and durations necessary to elicit mild TTS 
have been obtained for marine mammals. Southall et al. (2007) considers 
a 6 dB TTS (i.e., baseline thresholds are elevated by 6 dB) sufficient 
to be recognized as an unequivocal deviation and thus a sufficient 
definition of TTS-onset. Because it is non-injurious, NMFS considers 
TTS as Level B harassment that is mediated by physiological effects on 
the auditory system; however, NMFS does not consider onset TTS to be 
the lowest level at which Level B harassment may occur.
    Harbor seals within the action area are considered resident and may 
therefore be continually exposed to habitat restoration activities. 
Sound exposures that elicit TTS in pinnipeds underwater have been 
measured in harbor seals, California sea lions, and northern elephant 
seals for broadband or octaveband (OBN) non-pulse noise ranging from 
approximately 12 minutes to several hours (Kastak and Schusterman, 
1996; Finneran et al., 2003; Kastak et al., 1999; Kastak et al., 2005). 
Collectively, Kastak et al. (2005) analyzed these data to indicate that 
in the harbor seal, a TTS of ca. 6 dB occurred with 25 minute exposure 
to 2.5 kHz OBN with SPL of 152 dB re:1 microPa; the California sea lion 
showed TTS-onset at 174 dB re: 1 microPa (as summarized in Southall et 
al., 2007). Source levels emitted by vibratory pile extraction are low 
(likely below 155 dB) and would only occur for approximately 1 minute 
before stopping. The studies referenced above indicate that sound 
pressure levels at similar levels must be continuous to induce TTS. 
Furthermore, the studies above exposed animals to sounds with frequency 
ranges closer to their peak hearing frequency whereas vibratory hammers 
produce low frequency sounds, towards the lower end of seal hearing 
capabilities and therefore they must be louder in order to be heard. 
For these reasons, NMFS does not anticipate TTS will be induced.
    In summary, it is anticipated that seals will be initially 
disturbed by crew and vessels associated with the habitat restoration 
project; however, given the short duration and low energy of vibratory 
extraction, PTS will not occur and TTS is not likely. Those animals 
hauled out on the log booms will likely flush into the water. To avoid 
inducing strong reactions, the DNR will conduct activities such that 
the piles farthest from the hauled out seals will be removed first; 
thereby avoiding a sudden disturbance and allowing seals time to 
acclimate to human activity. The DNR will also not remove piles within 
30 yards (27 m) of haulouts, avoiding extreme close approaches. 
Throughout the day, seals are expected to become accustomed to crew 
presence of construction activities, as seen in previous disturbance 
studies within the Woodard Bay NRCA and other harbor seal populations. 
For these reasons, harbor seals are not expected to abandon the haulout 
or demonstrate extreme behaviors in response to crew and habitat 
restoration activities.

Anticipated Effects on Habitat

    Marine mammal habitat will be temporarily ensonified by low sound 
levels resulting from habitat restoration effort. The piles designated 
to be removed have been treated with creosote, a wood preservative that 
is toxic to the environment. Removing these piles will have beneficial 
impacts to the NRCA, including marine mammal habitat, by preventing the 
leaching of creosote chemicals, including polycyclic aromatic 
hydrocarbons, into the marine environment. No log booms will be 
removed; therefore, no impacts to the physical availability of haulout 
structure will occur.

Mitigation

    In order to issue an incidental take authorization (ITA) 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.
    The DNR has proposed mitigation measures designed to minimize 
disturbance to harbor seals within the action area in consideration of 
timing, location, and equipment use. Foremost, pile and structure 
removal will only occur between November and February, well outside 
harbor seal pupping and molting seasons. Therefore, no impacts from the 
specified activity during these sensitive time periods will occur. The 
DNR will approach the action area slowly to alert seals to their 
presence from a distance and will begin pulling piles at the farthest 
location from the log booms used as harbor seal haulout areas. Pilings 
directly associated with harbor seal haulouts (i.e., those within 30 
yards (27 m) of the booms) will not be removed. The contractor will be 
required to survey the operational area for seals before initiating 
activities and to wait until the seals are at a sufficient distance 
(i.e., 50 ft (15 m)) from the activity so as to minimize the risk of 
direct injury from the piling or structure breaking free or from 
equipment. The DNR will also require the contractor to initiate a 
vibratory hammer ``soft start'' at the beginning of each work day. The 
``soft-start'' method includes a reduced energy vibration from the 
hammer for the first 15 seconds and then a one minute waiting period. 
This method will be repeated twice before commencing with regular 
energy operations. Finally, the vibratory hammer power pack will be 
outfitted with a muffler to reduce in-air noise levels.
    NMFS has carefully evaluated the applicant's proposed mitigation 
measures in the context of ensuring that NMFS prescribes the means of 
effecting the least practicable adverse 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: (1) The manner in which, and the degree to 
which, the successful implementation of the measure is expected to 
minimize adverse impacts to marine mammals; (2) the proven or likely 
efficacy of the specific measure to minimize adverse impacts as 
planned; and (3) the practicability of the measure for applicant 
implementation, including consideration of personnel safety, and 
practicality of implementation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS or recommended by the public, 
NMFS has preliminarily determined that the proposed mitigation measures 
provide the means of effecting the least practicable adverse impacts on 
marine

[[Page 67955]]

mammals species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Monitoring and Reporting

    In order to issue an 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 IHAs 
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.
    Harbor seal research has been conducted at Woodard Bay since the 
1970's and has included seal ecology, population dynamics and 
disturbance behavior (Newby, 1970; Calambokidis et al., 1991; Buettner 
et al., 2008; Lambourn et al., 2009). The DNR's monitoring plan adheres 
to protocols already established for Woodard Bay research and, in 
coordination with NMFS, has been tailored for the specified activity. 
Monitoring of both haul-outs will be performed by at least one NMFS 
approved protected species observer (PSOs), who will monitor the 
haulouts the first two days of the project, when the contractors are 
mobilizing to a new location, during two days of every week when 
activities are occurring within 100 yards of the haul out area, during 
five of the days of work on the Chapman Bay Pier, and for at least six 
other days during the 40 day work period to be decided when the project 
schedule is provided by the contractor. Therefore, there will be at 
least 15 days where a designated observer will be on site over the 
course of 40 days of work. The PSO will be onsite prior to crew and 
vessel arrival to determine the number of seals present pre-
disturbance. The PSO will maintain a low profile during this time to 
minimize disturbance from monitoring.
    Observational data collected will include monitoring dates, times 
and conditions, estimated number of take, which will be recorded as 
number of seals flushed from the haulout, and type of activity 
occurring at time of disturbance. This information will be determined 
by recording the number of seals using the haul-out on each monitoring 
day prior to the start of restoration activities for that day, 
recording the number of seals that flush from the haulout or, for 
animals already in the water, display adverse behavioral reactions to 
vibratory extraction. A description of the disturbance source, the 
proximity in meters of the disturbance source, and reactions will be 
noted. Within 90 days of the completion of the project, DNR will submit 
a monitoring report to NMFS that will include a summary of findings and 
copies of field data sheets and relevant daily logs from the 
contractor.

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].

    During previous surveys, seal counts for the month of October, the 
last month (and closest to the months when the project will be carried 
out) that data is recorded each year, averaged 171 and ranged between 
79 and 275 individuals from 2006 to 2009 (Lambourn, 2010). Although 
there is no data for the months from November through February, when 
the project is scheduled to take place, the number of seals is expected 
to decline during these months, as compared with the summer/fall 
pupping season. Additionally, the seal counts for the month of October, 
from 2006-2009, are an aggregate of both haul-out sites from which 
seals may be disturbed. Given that the seals are likely to be 
relatively evenly split between the two haul-out sites, only a portion 
of the seals present on any given day would be subject to Level B 
harassment (i.e., those seals present at the haul-out closest to the 
area where work is occurring). Therefore, the DNR rejected the use of 
the most conservative approach to take estimation (using the maximum of 
275 seals), and used a more moderate approach (using the mean number of 
171 seals). Using this moderate approach, the DNR considers that 171 
seals could potentially be affected by the project per day. Woodard Bay 
trestle removal operations are not expected to harass marine mammals as 
the trestle is located approximately 850 yards (777 m) from the closest 
haulout. Therefore, days spent removing the trestle have been removed 
from take calculations. In addition, the DNR has proposed that removal 
of pilings located at greater than 100 yards (91 m) from the harbor 
seal haulout will not result in harassment as NMFS has indicated that 
people at Woodard Bay should remain 100 yards from the seals to prevent 
disturbance. Therefore, the DNR is estimating only nine days of pile 
removal will result in harassment to seals within the action area. 
Seals may be disturbed due to crew presence of pile removal operations. 
Given the mean of 171 animals on a haulout at any given day, the DNR is 
authorized to take, by Level B harassment, 1539 seals (171 x 9) during 
the habitat restoration project with the inference that the individual 
number of seals harassed will be low but may be taken multiple times. 
This take estimation reflects a change in methodology from that 
presented in the Federal Register notice of proposed authorization (75 
FR 48941, August 12, 2010). In that document, the DNR proposed to use 
the more conservative methodology for take estimation (i.e., 275 x 9); 
however, for reasons discussed previously in this section, the DNR has 
determined a more moderate approach to take estimation is appropriate.

Negligible Impact and Small Numbers Analysis and Determination

    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.'' In making a negligible impact determination, 
NMFS considers a number of factors associated with the proposed action 
and affected species and stocks including, but not limited to, the 
number of anticipated mortalities; number and nature of anticipated 
injuries; number, nature, intensity, and duration of Level B 
harassment; and temporal and spatial scale of the proposed action with 
respect to the ecology and life history of potentially affected marine 
mammals (e.g., will harassment occur on prime foraging grounds, during 
critical reproductive times, etc.).
    For reasons described previously in this document, there is no 
potential for serious injury or mortality from the specified activity. 
Further, although the potential for injury could be discountable to 
begin with, mitigation and monitoring measures will ensure seals are 
not physically injured from equipment (auditory injury is not possible 
due to low source levels and intermittent hammer operation). However, 
it is likely seals will react to the presence of crew and equipment and 
vibratory extraction noise (e.g., by flushing, avoiding the area). The 
DNR will not conduct habitat restoration

[[Page 67956]]

operations during the pupping and molting season; therefore, no pups 
will be affected by the proposed action and no impacts to any seals 
will occur as a result of the specified activity during these sensitive 
time periods. Mitigation measures (e.g. beginning work at the farthest 
distance to the haulout as possible, use of a muffler pack, etc.) will 
minimize onset of sudden, acute reactions and overall disturbance 
during project activities. In addition, it is not likely that seals at 
multiple haulouts will be disturbed simultaneously as work, for 
example, may affect the southern haulout but not the northern haulout 
based on location of the crew and barge. Although seals may initially 
flush into the water, based on previous disturbance studies and 
maintenance activity at the haulouts, the DNR expects seals will 
quickly habituate to piling and structure removal operations. For these 
reasons no long term or permanent abandonment of the haulout is 
anticipated.
    The seals at Woodard Bay are considered resident and make small 
daily movements to forage; however, exactly how far they transit is 
unknown. The mean count of the localized seal population from 1977-2008 
was 315 animals during the pupping season with a maximum of 400 
individuals counted in 2008 during this time. However, as described 
above, these numbers drop over the late fall and winter. The DNR has 
scheduled the project to occur from November-February, a time outside 
of sensitive reproductive periods and during a time seal numbers are 
lowest. The DNR is authorized to take approximately 171 seals multiple 
times. The number of individual seals harassed may be considered small 
(10.5%) when compared to the Inland Washington stock size (n=14,612). 
The fact that only temporary Level B, or behavioral, harassment would 
occur, and that the activity has been scheduled outside of sensitive 
reproduction periods, ensures that the least practicable adverse impact 
will occur.
    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, NMFS finds that piling and structure removal associated with 
the WA DNR's habitat restoration project will result in the incidental 
take of small numbers of marine mammals by Level B harassment only, and 
that the total taking from the specified activity will have a 
negligible impact on the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Endangered Species Act (ESA); thus, there will not be 
an unmitigable adverse impact on the availability for taking marine 
mammals for subsistence uses.
    No marine mammals listed under the ESA have the potential to be 
taken incidental to the proposed action as none occur within the action 
area. Therefore, Section 7 consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, NMFS has prepared an Environmental 
Assessment (EA) to consider the direct, indirect and cumulative effects 
to pinnipeds and other applicable environmental resources resulting 
from issuance of the IHA. On October 27, 2010, NMFS issued a Finding of 
No Significant Impact on the EA.

    Dated: October 29, 2010.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2010-27883 Filed 11-3-10; 8:45 am]
BILLING CODE 3510-22-P