[Federal Register Volume 79, Number 250 (Wednesday, December 31, 2014)]
[Notices]
[Pages 78821-78837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30540]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD644


Taking of Marine Mammals Incidental to Specified Activities; 
Vashon Seismic Retrofit Project

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) Ferries Division (WSF) for an 
authorization to take small numbers of nine species of marine mammals, 
by Level B harassment, incidental to proposed construction activities 
for Vashon Seismic Retrofit Project in Vashon Island, 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 January 
30, 2015.

ADDRESSES: Comments on the application should be addressed to Jolie

[[Page 78822]]

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#771e03075910021619371918161659101801"><span class="__cf_email__" data-cfemail="38514c48165f4d59567856575959165f574e">[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 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 June 20, 2014, WSDOT submitted a request to NOAA requesting an 
IHA for the possible harassment of small numbers of nine marine mammal 
species incidental to construction associated with the Vashon Seismic 
Retrofit Project at the Vashon Ferry Terminal in Vashon Island, 
Washington between August 1, 2015, and February 15, 2016. On December 
15, 2014, WSDOT added a test pile drive and removal program to the 
Vashon Seismic Retrofit Project and submitted a revised IHA 
application. The information provided here is based on WSDOT's December 
15, 2014, IHA application. NMFS is proposing to authorize the Level B 
harassment of the following marine mammal species/stocks: harbor seal, 
California sea lion, Steller sea lion, killer whale (transient and 
Southern Resident stocks), gray whale, humpback whale, minke whale, 
harbor porpoise, and Dall's porpoise.

Description of the Specified Activity

Overview

    WSDOT proposes to conduct Vashon Seismic Retrofit Project at the 
WSF Terminal in Vashon Island, Washington, to ensure the safe and 
reliable function of the Vashon Terminal in case of a significant 
earthquake.
    Approximately 210-linear feet of the existing trestle in the 
nearshore will be replaced. Existing decking, 67 13-inch diameter 
creosote-treated timber piles and 39 30-inch diameter concrete-jacketed 
creosote-treated timber piles will be removed with a vibratory hammer. 
Fifty-three 24-inch diameter permanent hollow steel piles will be 
installed with a vibratory hammer for approximately the first 40 feet, 
and driven with an impact hammer for (approximately) the final 10 feet. 
Approximately 44 13-inch diameter temporary untreated timber piles will 
be installed with an impact hammer to support the weight of a crane 
that will sit on the trestle to drive the permanent steel piles.
    Seismic bracing will be installed at up to 11 locations and will 
consist of a maximum of 66 24-inch diameter hollow steel piles 
installed with an impact hammer. Seismic bracing piles will be 
connected with concrete caps that tie each cluster of piles together.
    Approximately 52 temporary 24-inch diameter hollow steel piles will 
be required to support temporary false-work and work trestles necessary 
to install the seismic braces concrete caps. Each work trestle will 
consist of approximately 6 piles. These piles will be driven with a 
vibratory hammer and then proofed with an impact hammer to ensure they 
will bear the weight of the false-work and concrete caps.
    In addition, one double walled, one Mandrel and one control pile 
(three total) will be driven to the east of the Vashon trestle during 
the Seismic Retrofit project in 2015 or 2016 as part of the test pile 
program. The goal is to test the drivability of these piles in harder 
soils, and to test the rate of noise attenuation.

Dates and Duration

    WSDOT plans to conduct all in-water construction work activities 
during the period from August 1, 2015, to February 15, 2016.
    The number of days it will take to complete the partial trestle 
replacement and install the seismic bracings depends on the difficulty 
in penetrating the substrate during pile installation. It is assumed 
that only one vibratory or impact hammer will be in operation at a 
time. Durations are conservative, and the actual amount of time to 
install and remove piles will likely be less. Duration estimates of 
each of the pile driving/removal elements follow:
    <bullet> For the partial trestle replacement:
    [cir] Impact driving of temporary timber piles will take 
approximately 30 minutes per pile, with 3 piles installed per day over 
17 days.
    [cir] Vibratory driving of each permanent 24-inch steel pile will 
take approximately 60 minutes, followed by approximately 30 minutes of 
impact driving (approximately 600 strikes per pile), with 2-5 piles 
installed per day over 27 days.
    o Vibratory removal of temporary timber piles, and existing timber 
and concrete-jacketed timber piles will take approximately 30 minutes 
per pile, with 5-10 piles removed per day over 30 days.

[[Page 78823]]

    <bullet> For the seismic braces:
    [cir] Vibratory driving of each temporary 24-inch steel pile will 
take approximately 20 minutes, followed by approximately 10 minutes of 
impact proofing (approximately 60 strikes per pile), with 2-4 piles 
installed per day over 28 days.
    [cir] Impact driving of permanent 24-inch steel piles will take 
approximately two hours per pile, requiring approximately 3,000 strikes 
per pile, with approximately 2-4 piles installed per day over 28 days.
    [cir] Vibratory removal of temporary 24-inch steel piles will take 
approximately 30 minutes pile, with up to 3-10 piles removed per day 
over 20 days.
    <bullet> For the test pile:
    [cir] Impact driving of each 30-inch steel pile will take 
approximately 40 minutes, (approximately 3,000 strikes per pile), with 
3 piles installed over 1-2 days.
    [cir] Vibratory removal of each pile will take approximately 40 
minutes per pile, over 1-2 days.
    The maximum anticipated number of days for pile driving is 100. The 
maximum anticipated number of days for pile removal is 50. The worst-
case time for pile installation and removal is 311 hours over 150 days.

Specified Geographic Region

    The proposed activities will occur at the Vashon Ferry Terminal 
located in Vashon, Washington (Figure 1-2 of the IHA application). The 
Vashon Ferry Terminal, serving State Route 160, is located at the north 
end of Vashon Island, in King County, Washington. The terminal is part 
of what is known as the Triangle Route between West Seattle (Fauntleroy 
terminal), Vashon Island and the Kitsap Peninsula (Southworth 
terminal). The Vashon terminal is located in Section 6, Township 23 
North, Range 3 East, and is adjacent to Colvos Passage to the west and 
south, and the East Passage to the east, both tributary to Puget Sound 
(Figure 1-2 of the IHA application). Land use in the area is a mix of 
residential, business, small scale agriculture, Blake Island State 
Park, and local parks.

Detailed Description of Vashon Seismic Retrofit Project

    The following construction sequence is anticipated:
    <bullet> For the nearshore partial trestle replacement, work will 
proceed in stages as the crane advances away from the shore:
    [cir] impact drive temporary timber piles,
    [cir] vibratory/impact drive permanent 24-inch diameter hollow 
steel piles,
    [cir] advance to next section,
    <bullet> Temporary timber piles, and existing timber and concrete-
jacketed timber piles will either be removed with a vibratory hammer as 
the crane advances away from shore, or will be removed after all 
permanent steel piles are installed, as the crane retreats towards the 
shore.
    <bullet> When the partial trestle replacement is complete:
    [cir] 67 13-inch diameter existing timber piles and 39 30-inch 
diameter existing concrete-jacketed timber piles will have been removed 
with a vibratory hammer.
    [cir] 44 temporary 13-inch diameter timber piles will have been 
installed with an impact hammer, and removed with a vibratory hammer.
    [cir] 53 permanent 24-inch hollow steel piles will have been 
installed with a vibratory and impact hammer.
    <bullet> The seismic braces will be installed sequentially:
    [cir] Vibratory drive/impact proof temporary 24-inch diameter 
hollow steel piles,
    [cir] impact drive permanent 24-inch diameter hollow steel piles,
    [cir] construct temporary false-work and concrete cap,
    [cir] remove false-work,
    [cir] remove temporary 24-inch diameter hollow steel piles with a 
vibratory hammer,
    [cir] advance to next brace location.
    <bullet> When the seismic braces are complete:
    [cir] 52 temporary 24-inch diameter hollow steel piles will have 
been installed using a vibratory hammer/proofed with an impact hammer 
and removed with a vibratory hammer.
    [cir] 66 permanent 24-inch diameter hollow steel piles will have 
been installed with an impact hammer.
    Detailed descriptions of these activities are provided below.
1. Vibratory Hammer Pile Driving and Removal
    Vibratory hammers are commonly used in steel pile driving where 
sediments allow and involve the same vibratory hammer used in pile 
removal. 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, or to be removed. 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.
2. Impact Hammer Pile Installation
    Impact hammers are used to install plastic/steel core, wood, 
concrete, or steel piles. An impact hammer is a steel device that works 
like a piston. Impact hammers are usually large, though small impact 
hammers are used to install small diameter plastic/steel core piles. 
Impact hammers have guides (called a lead) that hold the hammer in 
alignment with the pile while a heavy piston moves up and down, 
striking the top of the pile, and drives it into the substrate from the 
downward force of the hammer on the top of the pile.
    To drive the pile, the pile is first moved into position and set in 
the proper location using a choker cable or vibratory hammer. Once the 
pile is set in place, pile installation with an impact hammer can take 
less than 15 minutes under good conditions to over an hour under poor 
conditions (such as glacial till and bedrock, or exceptionally loose 
material in which the pile repeatedly moves out of position).

Detailed Description of Test Pile Program

    One double walled, one Mandrel and one control pile (three total) 
will be driven to the east of the Vashon trestle during the Seismic 
Retrofit project in 2015 or 2016. The location shown on the sheet is 
approximate, as construction staging may require that it be moved. All 
test piles are 30'' hollow steel. The control pile will use a bubble 
curtain for attenuation. No unattenuated strikes will be allowed. The 
test will take place in water -10 to -25 ft (-3 to -8 m) mean lower low 
water (MLLW). Piles will be driven approximately 40 ft (13 m) into the 
sediment. The test should be complete in one day, though two days are 
proposed in case of complications.
    Piles will be impact driven and removed with a vibratory hammer. It 
is possible that some or all of the piles will not be able to be 
removed. In that case, the pile(s) will be cut below the mudline, and 
filled with sand to the natural grade.

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), California sea lion (Zalophus 
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), and Dall's porpoise (P. dali).

[[Page 78824]]

    General information on the marine mammal species found in 
California 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. 
Specific information concerning these species in the vicinity of the 
proposed action area is provided below.

Harbor Seal

    Harbor seals are members of the true seal family (Phocidae). There 
are three distinct west coast stocks: (1) Inland waters of Washington 
State (including Hood Canal, Puget Sound, Georgia Basin and the Strait 
of Juan de Fuca out to Cape Flattery), (2) outer coast of Oregon and 
Washington, and (3) California (Carretta et al. 2007).
    Pupping seasons vary by geographic region. For the southern Puget 
Sound region, pups are born from late June through September (WDFW 
2012a). After October 1 all pups in the inland waters of Washington are 
weaned.
    Harbor seals are the most numerous pinniped in the inland marine 
waters of Washington (Calambokidis and Baird 1994). Jeffries et al. 
(2003) recorded a mean count of 9,550 harbor seals in Washington's 
inland marine waters and estimated the total population to be 
approximately 14,612 animals (including the Strait of Juan de Fuca). 
The population across Washington increased at an average annual rate of 
10 percent between 1991 and 1996 (Jeffries et al. 1997) and is thought 
to be stable (Jeffries et al. 2003).
    The nearest documented harbor seal haulout site to the Vashon ferry 
terminal is 9.7 km northwest. The number of harbor seals using the 
haulout is less than 100 (WDFW 2000).
    Harbor seals have been observed hauled-out on a boat ramp to the 
east of the Vashon Ferry Terminal trestle and on a beach to the west of 
the trestle (Stateler 2013, WSF 2009).
    In 2009 WSDOT replaced several dolphin structures (structure used 
to reduce wave action) at the Vashon terminal. Marine mammal monitoring 
was implemented during this project. Over 7 days of monitoring in 
November of 2009, four harbor seals were observed near the terminal, 
three swimming and one hauled-out on the beach to the west of the 
trestle (WSF 2009).
    According to the NMFS National Stranding Database, there were 38 
confirmed harbor seal strandings in the Vashon area in 2010-2013 in the 
September-February work window scheduled for this project (NMFS 2014).
    Harbor seals are not ``depleted'' under the MMPA or listed as 
``threatened'' or ``endangered'' under the ESA. The Washington Inland 
Waters stock of harbor seals is not classified as a ``strategic'' 
stock. The stock is also considered within its Optimum Sustainable 
Population level (Jeffries et al. 2003).
    Harbor seals are the most numerous marine mammal species in Puget 
Sound. Harbor seals are non-migratory; their local movements are 
associated with such factors as tides, weather, season, food 
availability and reproduction (Scheffer and Slipp 1948; Fisher 1952; 
Bigg 1969, 1981). They are not known to make extensive pelagic 
migrations, although some long-distance movements of tagged animals in 
Alaska (174 km) and along the U.S. west coast (up to 550 km) have been 
recorded (Pitcher and McAllister 1981; Brown and Mate 1983; Herder 
1983).
    Harbor seals haul out on rocks, reefs and beaches, and feed in 
marine, estuarine and occasionally fresh waters. Harbor seals display 
strong fidelity for haulout sites (Pitcher and Calkins 1979; Pitcher 
and McAllister 1981).
    The nearest documented harbor seal haulout site to the Vashon ferry 
terminal is 9.7 km northwest. The level of use of this haulout during 
the fall and winter is unknown but is expected to be much less as air 
temperatures become colder than water temperatures resulting in seals 
in general hauling out less. Harbor seals may also use other 
undocumented haulout sites in the area.
    Transient killer whales often forage to the east of Allen Bank for 
harbor seals (Sears 2013), which is within the project zone of 
influence (ZOI). NW Blake Island, just north of Vashon Island is a 
`hot-spot' for seals that are prey for Transients (Stateler 2013).

California Sea Lion

    The U.S. stock of California sea lion was estimated at 296,750 in 
the 2011 SAR (NMFS 2011) and may be at carrying capacity, although more 
data are needed to verify that determination (Carretta et al. 2007). 
Some 3,000 to 5,000 animals are estimated to move into northwest waters 
(both Washington and British Columbia) during the fall (September) and 
remain until the late spring (May) when most return to breeding 
rookeries in California and Mexico (Jeffries et al. 2000). Peak counts 
of over 1,000 animals have been made in Puget Sound (Jeffries et al. 
2000).
    In 2009 WSDOT replaced several dolphin structures at the Vashon 
terminal. Marine mammal monitoring was implemented during this project. 
Over 7 days of monitoring in November of 2009, four California sea 
lions swimming near the terminal (WSF 2009).
    From November of 2012 to February of 2014, the U.S. Navy collected 
sightings data of California sea lions hauled-out on the Rich Passage 
float and buoy. In the September to February timeframe scheduled for 
this project, the Navy reported a total of 646 California sea lions 
over 14 days of observation, with a high of 110 on January 14, 2014 
(U.S. Navy 2014).
    According to the NMFS National Stranding Database, there were four 
confirmed California sea lion strandings in the Vashon area in 2010-
2013, in the September-February work window scheduled for this project.
    California sea lions are not listed as endangered or threatened 
under the ESA or as depleted under the MMPA. They are not considered a 
strategic stock under the MMPA, because total human-caused mortality, 
although unknown, is likely to be well less than the PBR (9,200) (NMFS 
2011).
    California sea lions breed on islands off Baja Mexico and southern 
California with primarily males migrating north to feed in the northern 
waters (Everitt et al. 1980). Females remain in the waters near their 
breeding rookeries off California and Mexico. All age classes of males 
are seasonally present in Washington waters (WDFW 2000).
    California sea lions were unknown in Puget Sound until 
approximately 1979 (Steiger and Calambokidis 1986). Everitt et al. 
(1980) reported the initial occurrence of large numbers at Port 
Gardner, Everett (northern Puget Sound) in the spring of 1979. The 
number of California sea lions using the Everett haulout numbered 
around 1,000. This haulout remains the largest in the state for sea 
lions in general and for California sea lions specifically. Similar 
sightings and increases in numbers were documented throughout the 
region after the initial sighting in 1979 (Steiger and Calambokidis 
1986), including urbanized areas such as Elliott Bay near Seattle and 
heavily used areas of central Puget Sound (Gearin et al. 1986). In 
Washington, California sea lions use haulout sites within all inland 
water regions (WDFW 2000). The movement of California sea lions into 
Puget Sound could be an expansion in range of a growing population 
(Steiger and Calambokidis 1986).
    California sea lions do not avoid areas with heavy or frequent 
human activity but rather may approach certain areas to investigate. 
This species typically does not flush from a buoy or haulout if 
approached.

[[Page 78825]]

    The nearest documented California sea lion haulout site to the 
Vashon ferry terminal is 7.8 km NW (WDFW 2000).

Steller Sea Lion

    Steller sea lions comprise two recognized management stocks 
(eastern and western), separated at 144[ordm] W longitude (Loughlin 
1997). Only the eastern stock is considered here because the western 
stock occurs outside of the geographic area of the proposed activity. 
Breeding rookeries for the eastern stock are located along the 
California, Oregon, British Columbia, and southeast Alaska coasts but 
not along the Washington coast or in inland Washington waters (Angliss 
and Outlaw 2007). Steller sea lions primarily use haulout sites on the 
outer coast of Washington and in the Strait of Juan de Fuca along 
Vancouver Island in British Columbia. Only sub-adults or non-breeding 
adults may be found in the inland waters of Washington (Pitcher et al. 
2007).
    The eastern stock was estimated at 52,847 individuals in the 2012 
SAR, and the most recent estimate for Washington state (including the 
outer coast) is 516 individuals (non-pups only) (NMFS 2012a). However, 
there are estimates that 1,000 to 2,000 individuals enter the Strait of 
Juan de Fuca during the fall and winter months.
    Steller sea lion numbers in Washington State decline during the 
summer months, which correspond to the breeding season at Oregon and 
British Columbia rookeries (approximately late May to early June) and 
peak during the fall and winter months (WDFW 2000). A few Steller sea 
lions can be observed year-round in Puget Sound although most of the 
breeding age animals return to rookeries in the spring and summer.
    Steller sea lions were listed as threatened range-wide under the 
ESA on November 26, 1990 (55 FR 49204). After division into two stocks, 
the western stock was listed as endangered under the ESA on May 4, 1997 
and the eastern stock remained classified as threatened (62 FR 24345). 
In 2006 the NMFS Steller sea lion recovery team proposed removal of the 
eastern stock from listing under the ESA based on its annual rate of 
increase of approximately 3% since the mid-1970s. The eastern stock was 
delisted in November 2013.
    On August 27, 1993, NMFS published a final rule designating 
critical habitat for the Steller sea lion. No critical habitat was 
designated in Washington. Critical habitat is associated with breeding 
and haulout areas in Alaska, California, and Oregon (NMFS 1993).
    Steller sea lions are listed as depleted under the MMPA. Both 
stocks are classified as strategic.
    Adult Steller sea lions congregate at rookeries in Oregon, 
California, and British Columbia for pupping and breeding from late May 
to early June (Gisiner 1985). Rookeries are usually located on beaches 
of relatively remote islands, often in areas exposed to wind and waves, 
where access by humans and other mammalian predators is difficult (WDFW 
1993).
    For Washington inland waters, Steller sea lion abundances vary 
seasonally with a minimum estimate of 1,000 to 2,000 individuals 
present or passing through the Strait of Juan de Fuca in fall and 
winter months. The number of haulout sites has increased in recent 
years.
    In 2009 WSDOT replaced several dolphin structures at the Vashon 
terminal. Marine mammal monitoring was implemented during this project. 
Over 7 days of monitoring in November of 2009, no Steller sea lions 
were observed (WSF 2009).
    From November of 2012 to February of 2014, the U.S. Navy collected 
sightings data of Steller sea lions hauled-out on the Rich Passage 
float and buoy. In the September to February timeframe scheduled for 
this project, the Navy reported a total of 48 Steller sea lions over 14 
days of observation, with a high of 9 in January 14, 2014 (U.S. Navy 
2014).
    According to the NMFS National Stranding Database, there were no 
Steller sea lion strandings in the Vashon area in 2010-13.

Killer Whale

    Two sympatric ecotypes of killer whales are found within the 
proposed activity area: transient and resident. These types vary in 
diet, distribution, acoustic calls, behavior, morphology, and 
coloration (Baird 2000; Ford et al. 2000). The ranges of transient and 
resident killer whales overlap; however, little interaction and high 
reproductive isolation occurs among the two ecotypes (Barrett-Lennard 
2000; Barrett-Lennard and Ellis 2001; Hoelzel et al. 2002. Resident 
killer whales are primarily piscivorous, whereas transients primarily 
feed on marine mammals, especially harbor seals (Baird and Dill 1996). 
Resident killer whales also tend to occur in larger (10 to 60 
individuals), stable family groups known as pods, whereas transients 
occur in smaller (less than 10 individuals), less structured pods.
    Two stocks of resident killer whales occur in Washington State: The 
Southern Resident and Northern Resident stocks. Southern Residents 
occur within the activity area, in the Strait of Juan de Fuca, Strait 
of Georgia, and in coastal waters off Washington and Vancouver Island, 
British Columbia. Northern Residents occur primarily in inland and 
coastal British Columbia and Southeast Alaska waters and rarely venture 
into Washington State waters. Little interaction (Ford et al. 2000) or 
gene flow (Barrett-Lennard 2000; Barrett-Lennard and Ellis 2001) is 
known to occur between the two resident stocks.
    The Southern Residents live in three family groups known as the J, 
K and L pods. The entire Southern Resident population has been annually 
recorded since 1973 (Krahn et al. 2004). Individual whales are 
identified through photographs of unique saddle patch and dorsal fin 
markings. Each Southern Resident pod has a distinctive dialect of 
vocalizations (Ford 1989) and calls can travel 10 miles or more 
underwater. Southern Resident killer whale forage primarily on salmon, 
with Chinook salmon considered the major prey in the Puget Sound region 
in late spring through the fall. Other identified prey included chum 
salmon, other salmonids, herring, and rockfish (NMFS 2008).
    Small population numbers make Southern Residents vulnerable to 
inbreeding depression and catastrophic events such as disease or a 
major oil spill. Ongoing threats to Southern Residents include 
declining prey resources, environmental contaminants, noise and 
physical disturbance (Krahn et al. 2004; Wiles 2004). In Washington's 
inland waters, high levels of noise disturbance and potential behavior 
disruption are due to recreational boating traffic, private and 
commercial whale watching boats and commercial vessel traffic (Wiles 
2004). Other potential noise disturbance includes high output military 
sonar equipment and marine construction. Noise effects may include 
altered prey movements and foraging efficiency, masking of whale calls, 
and temporary hearing impairment (Krahn et al. 2004).
    The Southern Resident stock was first recorded in a 1974 census, at 
which time the population comprised 71 whales. This population peaked 
at 97 animals in 1996, declined to 79 by 2001 (Center for Whale 
Research 2011), and then increased to 89 animals by 2006 (Carretta et 
al. 2007). As of December 2013, the population collectively numbers 80 
individuals: J pod has 25 members, K pod has 19 members, and L pod has 
36 members (Center for Whale Research 2013).

[[Page 78826]]

    The Southern Resident stock has declined from 97 individuals is due 
to a decrease in birth rates and an increase in mortalities, especially 
among the L pod (Krahn et al. 2004). There are a limited number of 
reproductive-age Southern Resident males, and several females of 
reproductive age are not having calves. Three major threats were 
identified in the ESA listing: Reduced quantity and quality of prey; 
persistent pollutants that could cause immune or reproductive system 
dysfunction; and effects from vessels and sound (NMFS 2008). Other 
threats identified were demographics, small population size, and 
vulnerability to oil spills. Previously, declines in the Southern 
Resident population were due to shooting by fishermen, whalers, sealers 
and sportsmen largely due to their interference with fisheries (Wiles 
2004) and the aquarium trade, which is estimated to have taken a 
significant number of animals from 1967 to 1973 (Ford et al. 1995). 
According to the 2012 SAR, the PBR is 0.14 animals (NMFS 2012).
    The Southern Resident stock was declared depleted under the MMPA in 
May 2003. At that time, NMFS announced preparation of a conservation 
plan to restore the stock to its optimal sustainable population. On 
November 18, 2005, the Southern Resident killer whale stock was listed 
as an endangered distinct population segment (DPS) under the ESA. On 
November 29, 2006, NMFS published a final rule designating critical 
habitat for the Southern Resident killer whale DPS. Both Puget Sound 
and the San Juan Islands are designated as core areas of critical 
habitat under the ESA, excluding areas less than 20 feet deep relative 
to extreme high water.
    In Washington State, killer whales were listed as a state candidate 
species in 2000. In April 2004, the state upgraded their status to a 
state endangered species.
    Southern Residents are documented in coastal waters ranging from 
central California to the Queen Charlotte Islands, British Columbia 
(NMFS 2008). They occur in all inland marine waters within the activity 
area. While in the activity area, resident killer whales generally 
spend more time in deeper water and only occasionally enter water less 
than 15 feet deep (Baird 2000). Distribution is strongly associated 
with areas of greatest salmon abundance, with heaviest foraging 
activity occurring over deep open water and in areas characterized by 
high-relief underwater topography, such as subsurface canyons, 
seamounts, ridges, and steep slopes (Wiles 2004).
    Records from 1976 through 2006 document Southern Residents in the 
inland waters of Washington during the months of March through June and 
October through December, with the primary area of occurrence in inland 
waters north of Admiralty Inlet, located in north Puget Sound (The 
Whale Museum 2008).
    Beginning in May or June and through the summer months, all three 
pods (J, K and L) of Southern Residents are most often located in the 
protected inshore waters of Haro Strait (west of San Juan Island), in 
the Strait of Juan de Fuca, and Georgia Strait near the Fraser River. 
Historically, the J pod also occurred intermittently during this time 
in Puget Sound; however, records from The Whale Museum (2008) from 1997 
through 2007 show that J pod did not enter Puget Sound south of the 
Strait of Juan de Fuca from approximately June through August.
    In fall, all three Southern Resident killer whale pods occur in 
areas where migrating salmon are concentrated such as the mouth of the 
Fraser River. They may also enter areas in Puget Sound where migrating 
chum and Chinook salmon are concentrated (Osborne 1999). In the winter 
months, the K and L pods spend progressively less time in inland marine 
waters and depart for coastal waters in January or February. The J pod 
is most likely to appear year-round near the San Juan Islands, and in 
the fall/winter, in the lower Puget Sound and in Georgia Strait at the 
mouth of the Fraser River.
    Southern Resident killer whales are present in the Vashon Island 
area in November-January, coinciding with chum salmon runs, with peak 
sightings in November/December. Southern Resident killer whales 
commonly forage for salmon on the east side of Vashon Island. They tend 
to pass through the Vashon area, traveling at approximately 4 mph, 
rather than staying in the area (Sears 2013).
    Ann Stateler of the Vashon Hydrophone Project (and a Vashon Island 
resident) has been observing whales in the area since 1994. Her 
observations since 2005 show that the broad window for Southern 
Resident killer whale presence in the Vashon area has been from October 
to March, with most encounters occurring between November and January. 
Prey samples collected by Mark Sears and NOAA researchers in local 
waters indicate that the Southern Resident killer whales are targeting 
Chum and Chinook salmon.
    Southern Resident killer whales use all of the waterways 
surrounding Vashon/Maury Island: East Passage, Colvos Pass, Dalco Pass, 
waters off the north end between Blake and Vashon Islands. Sometimes 
the Southern Resident killer whales circumnavigate the island. Southern 
Resident killer whale visits to the Vashon area have been highly 
variable. Typically, members of all three pods are observed over a 
year, with the exception of 2006 when J Pod was not present for the 
first time since observations have been recorded.
    In 2009 WSDOT replaced several dolphin structures at the Vashon 
terminal. Marine mammal monitoring was implemented during this project. 
Over 7 days of monitoring in November of 2009, no killer whales were 
observed (WSF 2009).
    According to the NMFS National Stranding Database, there were no 
killer whale strandings in the Vashon area in 2010-13 (NMFS 2014).
    The West Coast Transient stock occurs in Washington State. This 
stock ranges from southern California to southeast Alaska and is 
distinguished from two other Eastern North Pacific transient stocks 
that occur further north, the AT1 and the ``Gulf of Alaska transient 
stocks. This separation was based on variations in acoustic calls and 
genetic distinctness (Angliss and Outlaw 2007). West Coast transients 
primarily forage on harbor seals (Ford and Ellis 1999), but other 
species such as porpoises and sea lions are also taken (NMFS 2008).
    The West Coast Transient stock, which includes individuals from 
California to southeastern Alaska, was estimated to have a minimum 
number of 354 in the 2010 SAR (NMFS 2010).
    Trends in abundance for the West Coast Transients were unavailable 
in the most recent stock assessment report (Angliss and Outlaw 2007). 
Human-caused mortality and serious injury are estimated to be zero 
animals per year and do not exceed the PBR, which is estimated at 3.5 
animals (NMFS 2010).
    The West Coast Transient stock is not designated as depleted under 
the MMPA or listed as ``threatened'' or ``endangered'' under the ESA.
    Within the inland waters, Transients may frequent areas near seal 
rookeries when pups are weaned (Baird and Dill 1995). West Coast 
Transients are documented intermittently year-round in Washington 
inland waters.
    Transient sightings have become more common since the mid-2000s. 
Unlike the Southern Resident killer whale pods, Transients may be 
present in the area for hours as they hunt pinnipeds. Transients often 
forage to the east of Allen Bank, which is within the project ZOI. NW 
Blake Island, just north of Vashon Island is a `hot-spot' for seals

[[Page 78827]]

that are prey for Transients. Transients may be more present during 
September/October harbor seal pup weaning.

Gray Whale

    The North Pacific gray whale stock is divided into two distinct 
geographically isolated stocks: Eastern and western ``Korean.'' 
Individuals in this region are part of the Eastern North Pacific stock. 
The majority of the Eastern North Pacific population spends summers 
feeding in the Bering and Chukchi Seas, but some individuals have been 
reported summering in waters off the coast of British Columbia, 
Southeast Alaska, Washington, Oregon and California (Rice et al. 1984; 
Angliss and Outlaw 2007). Gray whales migrate in the fall, south along 
the coast of North America to Baja California, Mexico to calve (Rice et 
al. 1981.) Gray whales are recorded in Washington waters during feeding 
migrations between late spring and autumn with occasional sightings 
during winter months (Calambokidis et al. 1994, 2002).
    Early in the 20th century, it is believed that commercial hunting 
for gray whales reduced population numbers to below 2,000 individuals 
(Calambokidis and Baird 1994). Population surveys since the delisting 
estimate that the population fluctuates at or just below the carrying 
capacity of the species (~26,000 individuals) (Rugh et al. 1999; 
Calambokidis et al. 1994; Angliss and Outlaw 2007).
    According to the 2013 SAR, the minimum population estimate of the 
Eastern North Pacific stock is 18,017 (NMFS 2011c). Within Washington 
waters, gray whale sightings reported to Cascadia Research and the 
Whale Museum between 1990 and 1993 totaled over 1,100 (Calambokidis et 
al. 1994). Abundance estimates calculated for the small regional area 
between Oregon and southern Vancouver Island, including the San Juan 
Area and Puget Sound, suggest there were 137 to 153 individual gray 
whales from 2001 through 2003 (Calambokidis et al. 2004). Forty-eight 
individual gray whales were observed in Puget Sound and Hood Canal in 
2004 and 2005 (Calambokidis 2007).
    After listing of the species under the ESA in 1970, the number of 
gray whales increased dramatically resulting in their delisting in 
1994. In 2001 NOAA Fisheries received a petition to relist the stock 
under the ESA, but it was determined that there was not sufficient 
information to warrant the petition (Angliss and Outlaw 2007). Since 
delisting under the ESA, the stock has not been reclassified under the 
MMPA. The PBR for this stock is 360 animals per year (NMFS 2011).
    Gray whales migrate within 5 to 43 km of the coast of Washington 
during their annual north/south migrations (Green et al. 1995). Gray 
whales migrate south to Baja California where they calve in November 
and December, and then migrate north to Alaska from March through May 
(Rice et al. 1984; Rugh et al. 2001) to summer and feed. A few gray 
whales are observed in Washington inland waters between the months of 
September and January, with peak numbers of individuals from March 
through May. Peak months of gray whale observations in the area of 
activity occur outside the proposed work window of September through 
February. The average tenure within Washington inland waters is 47 days 
and the longest stay was 112 days.
    Although typically seen during their annual migrations on the outer 
coast, a regular group of gray whales annually comes into the inland 
waters at Saratoga Passage and Port Susan from March through May to 
feed on ghost shrimp (Weitkamp et al. 1992). During this time frame 
they are also seen in the Strait of Juan de Fuca, the San Juan Islands, 
and areas of Puget Sound, although the observations in Puget Sound are 
highly variable between years (Calambokidis et al. 1994).
    In 2009 WSDOT replaced several dolphin structures at the Vashon 
terminal. Marine mammal monitoring was implemented during this project. 
Over 7 days of monitoring in November of 2009, no gray whales were 
observed (WSF 2009).
    According to the NMFS National Stranding Database, there were no 
gray whale strandings in the Vashon area in 2010-13 (NMFS 2014).

Humpback Whale

    Humpback whales are wide-ranging baleen whales that can be found 
virtually worldwide. Recent studies have indicated that there are three 
distinct stocks of humpback whale in the North Pacific: California-
Oregon-Washington (formerly Eastern North Pacific), Central North 
Pacific and Western North Pacific (NMFS 2011).
    The California-Oregon-Washington (CA-OR-WA) stock may be found near 
the project site. This stock calves and mates in coastal Central 
America and Mexico and migrates up the coast from California to 
southern British Columbia in the summer and fall to feed (NMFS 1991; 
Marine Mammal Commission 2003; Carretta et al. 2007). Although 
infrequent, interchange between the other two stocks and the CA-OR-WA 
stock occurs in breeding areas (Carretta et al. 2007). Few CA-OR-WA 
stock humpback whales are seen in Puget Sound, but more frequent 
sightings occur in the Strait of Juan de Fuca and near the San Juan 
Islands. Most sightings are in spring and summer. Humpback whales feed 
on krill, small shrimp-like crustaceans and various kinds of small 
fish.
    According to the 2013 SAR, the 2007/2008 estimate of 2,043 humpback 
whales is the best estimate for abundance for this stock, though it 
does exclude some whales in Washington (Calambokidis et al. 2009).
    As a result of commercial whaling, humpback whales were listed as 
``endangered'' under the Endangered Species Conservation Act of 1969. 
This protection was transferred to the Endangered Species Act (ESA) in 
1973. The species is still listed as ``endangered'', and consequently 
the stock is automatically considered as a ``depleted'' and 
``strategic'' stock under the MMPA.
    Historically, humpback whales were common in inland waters of Puget 
Sound and the San Juan Islands (Calambokidis et al. 2002). In the early 
part of this century, there was a productive commercial hunt for 
humpbacks in Georgia Strait that was probably responsible for their 
long disappearance from local waters (Osborne et al. 1988). Since the 
mid-1990s, sightings in Puget Sound have increased. Between 1996 and 
2001, Calambokidis et al. (2002) recorded six individuals south of 
Admiralty Inlet (northern Puget Sound).
    In 2009 WSDOT replaced several dolphin structures at the Vashon 
terminal. Marine mammal monitoring was implemented during this project. 
Over 7 days of monitoring in November of 2009, no humpback whales were 
observed (WSF 2009).
    According to the NMFS National Stranding Database, there were no 
humpback whale strandings in the Vashon area in 2010-13 (NMFS 2014).

Minke Whales

    The northern minke whale is part of the Northern Pacific stock, 
which is broken into three management stocks: The Alaskan, California/
Oregon/Washington, and the Hawaiian stock (NMFS 2008). The California/
Oregon/Washington management stock is considered a resident stock, 
which is unlike the other Northern Pacific stocks (NMFS 2008). This 
stock includes minke whales within the inland Washington waters of 
Puget Sound and the San Juan Islands (Dorsey et al. 1990; Carretta et 
al. 2007), which may be present in the project area.
    Minke whales have small, dark sleek bodies and a small dorsal fin. 
These

[[Page 78828]]

whales are often recognized by surfacing snout first and a shallow but 
visible ``bushy'' blow. Minke whales feed by side lunging into schools 
of prey and gulping in large amounts of water. Food sources typically 
consist of krill, copepods, and small schooling fish, such as 
anchovies, herring, mackerel, and sand lance (NMFS 2008).
    According to the 2013 SAR, the minimum population estimate of the 
CA/OR/WA stock is 202 and is likely no more than 600 (NE Pacific Minke 
Project 2014). Information on minke whale population and abundance is 
limited due to difficulty in detection. Conducting surveys for the 
minke whale is difficult because of their low profiles, indistinct 
blows, and tendency to occur as single individuals (Green et al. 1992). 
Over a 10-year period, 30 individuals were photographically identified 
in the U.S./Canada trans-boundary area around the San Juan Islands and 
demonstrated high site fidelity (Dorsey et al. 1990; Calambokidis and 
Baird 1994). In a single year, up to 19 individuals were 
photographically identified from around the San Juan Islands (Dorsey et 
al. 1990).
    Minke whales are not listed under the ESA and are classified as 
non-depleted under the MMPA. The annual mortality due to fisheries and 
ship strikes is less than the potential biological removal, so they are 
not considered a strategic management stock under the MMPA (Carretta et 
al. 2007). The PBR for this stock is two animals per year (NMFS 2011).
    Minke whales are reported in Washington inland waters year-round, 
although few are reported in the winter (Calambokidis and Baird 1994). 
Minke whales are relatively common in the San Juan Islands and Strait 
of Juan de Fuca (especially around several of the banks in both the 
central and eastern Strait), but are relatively rare in Puget Sound.
    In the 1980s minke whales were found in three main areas around the 
San Juan Islands; west of Shaw Island (Minke Lake), the San Juan 
Channel and the Strait of San Juan de Fuca (Salmon Bank). However, by 
the 1990s the first two areas were abandoned, and minke whales were 
only found in the Strait of Juan de Fuca, despite continued search 
efforts in the other areas. This coincided with a general decline of 
herring in the area, possibly associated with disturbance of adjacent 
herring spawning grounds. A qualitative change in the number of sea 
birds was also noted at this time. In more recent years (2005-2011), 
minke whales were found foraging in all three areas again, and bird 
numbers were also higher. But minke whales are still predominantly 
found on the banks in the Strait of Juan de Fuca (NE Pacific Minke 
Whale Project 2014).
    In 2009 WSDOT replaced several dolphin structures at the Vashon 
terminal. Marine mammal monitoring was implemented during this project. 
Over 7 days of monitoring in November of 2009, no Minke whales were 
observed (WSF 2009).
    According to the NMFS National Stranding Database, there were no 
Minke whale strandings in the Vashon area in 2010-13 (NMFS 2014).

Harbor Porpoises

    The Washington Inland Waters Stock of harbor porpoise may be found 
near the project site. The Washington Inland Waters Stock occurs in 
waters east of Cape Flattery (Strait of Juan de Fuca, San Juan Island 
Region, and Puget Sound).
    According to the 2013 SAR, the Washington Inland Waters Stock mean 
abundance estimate based on 2002 and 2003 aerial surveys conducted in 
the Strait of Juan de Fuca, San Juan Islands, Gulf Islands, and Strait 
of Georgia is 10,682 harbor porpoises (NMFS 2011).
    No harbor porpoises were observed within Puget Sound proper during 
comprehensive harbor porpoise surveys (Osmek et al. 1994) or Puget 
Sound Ambient Monitoring Program (PSAMP) surveys conducted in the 1990s 
(WDFW 2008). Declines were attributed to gill-net fishing, increased 
vessel activity, contaminants, and competition with Dall's porpoise.
    However, populations appear to be rebounding with increased 
sightings in central Puget Sound (Carretta et al. 2007) and southern 
Puget Sound (WDFW 2008). Recent systematic boat surveys of the main 
basin indicate that at least several hundred and possibly as many as 
low thousands of harbor porpoise are now present. While the reasons for 
this recolonization are unclear, it is possible that changing 
conditions outside of Puget Sound, as evidenced by a tripling of the 
population in the adjacent waters of the Strait of Juan de Fuca and San 
Juan Islands since the early 1990s, and the recent higher number of 
harbor porpoise mortalities in coastal waters of Oregon and Washington, 
may have played a role in encouraging harbor porpoise to explore and 
shift into areas like Puget Sound (Hanson et. al. 2011).
    The Washington Inland Waters Stock of harbor porpoise is ``non-
depleted'' under MMPA and ``unlisted'' under the ESA. Because there is 
no current estimate of minimum abundance, a PBR cannot be calculated 
for this stock (NMFS 2011).
    Harbor porpoises are common in the Strait of Juan de Fuca and south 
into Admiralty Inlet, especially during the winter, and are becoming 
more common south of Admiralty Inlet. Little information exists on 
harbor porpoise movements and stock structure near the Vashon area, 
although it is suspected that in some areas harbor porpoises migrate 
(based on seasonal shifts in distribution). Washington Department of 
Fish and Wildlife's (WDFW) Puget Sound Ambient Monitoring Program 
(PSAMP) data show peaks in Washington waters to occur during the 
winter.
    Hall (2004) found that the frequency of sighting of harbor 
porpoises decreased with increasing depth beyond 150 m with the highest 
numbers observed at water depths ranging from 61 to 100 m. Although 
harbor porpoises have been spotted in deep water, they tend to remain 
in shallower shelf waters (<150 m) where they are most often observed 
in small groups of one to eight animals (Baird 2003). Water depths 
within the Vashon ZOIs range from 0 to 246 m, with roughly 2/3 of the 
area within the ZOI falling within the 61-100 m depth where the highest 
number of harbor porpoises may be observed.
    According to Vashon Island area whale specialist Mark Sears, harbor 
porpoise are seen in groups of 2-3, and occasionally in groups of 6-12, 
and numbers in the area peak in May/June (Sears 2013).
    In 2009 WSDOT replaced several dolphin structures at the Vashon 
terminal. Marine mammal monitoring was implemented during this project. 
Over 7 days of monitoring in November of 2009, one harbor porpoise was 
observed (WSF 2009).
    According to the NMFS National Stranding Database, there was one 
harbor porpoise stranding in the Vashon area in 2010-13, in the 
September-February work window scheduled for this project (NMFS 2013).

Dall's Porpoises

    The California, Oregon, and Washington Stock of Dall's porpoise may 
be found near the project site. The most recent estimate of Dall's 
porpoise stock abundance is 42,000, based on 2005 and 2008 summer/
autumn vessel-based line transect surveys of California, Oregon, and 
Washington waters (NMFS 2011). Within the inland waters of Washington 
and British Columbia, this species is most abundant in the Strait of 
Juan de Fuca east to the San Juan Islands. The most recent Washington's 
inland waters estimate is 900 animals

[[Page 78829]]

(Calambokidis et al. 1997). Prior to the 1940s, Dall's porpoises were 
not reported in Puget Sound.
    The California, Oregon, and Washington Stock of Dall's porpoise is 
``non-depleted'' under the MMPA, and ``unlisted'' under the ESA. The 
PBR for this stock is 257 Dall's porpoises per year (NMFS 2011).
    Dall's porpoises are migratory and appear to have predictable 
seasonal movements driven by changes in oceanographic conditions (Green 
et al. 1992, 1993) and are most abundant in Puget Sound during the 
winter (Nysewander et al. 2005; WDFW 2008). Despite their migrations, 
Dall's porpoises occur in all areas of inland Washington at all times 
of year, but with different distributions throughout Puget Sound from 
winter to summer. The Washington State Department of Fish and 
Wildlife's (WDFW) Puget Sound Ambient Monitoring Program (PSAMP) data 
show peaks in Washington waters to occur during the winter. The average 
winter group size is three animals (WDFW 2008).
    In 2009 WSDOT replaced several dolphin structures at the Vashon 
terminal. Marine mammal monitoring was implemented during this project. 
Over 7 days of monitoring in November of 2009, no Dall's porpoise were 
observed (WSF 2009).
    Dall's porpoise used to be more common that harbor porpoise in the 
Vashon area, though harbor porpoise is now more common. The usual 
observation in the Vashon area is a single Dall's porpoise, or a pair 
(Sears 2013).
    According to the NMFS National Stranding Database, there were no 
Dall's porpoise strandings in the Vashon area in 2010-13 (NMFS 2013).
Potential Effects of the Specified Activity on Marine Mammals
    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, marine mammal species/
stocks are likely to occur in the proposed seismic survey area. WSDOT 
and NMFS determined that in-water pile removal and pile driving during 
the Vashon Seismic Retrofit Project has the potential to result in 
behavioral harassment of the marine mammal species and stocks in the 
vicinity of the proposed activity.
    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 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

[[Page 78830]]

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.
    Nevertheless, the sum of noise from WSDOT's proposed Vashon Seismic 
Retrofit Project 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.
    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 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.
    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 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.

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 vessels) 
(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.
    Further, 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 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, pile removal and 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 removal and 
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 
WSF 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 Vashon ferry 
terminal to experience effects of 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.
    Pile driving and removal at the Vashon ferry terminal will not 
obstruct movements of marine mammals. Pile work at Vashon will occur 
within 70 m/230 ft of the shoreline leaving 2 km/1.2 miles of Puget 
Sound for marine mammals to pass.
Potential Impacts on Availability of Affected Species or Stock for 
Taking for Subsistence Uses
    No subsistence harvest of marine mammals occur in the proposed 
action area.

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

[[Page 78831]]

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 Vashon Seismic Retrofit 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 
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.

Use of Noise Attenuation Devices

    Noise attenuation systems (i.e., bubble curtains) will be used 
during all impact pile driving of steel piles to dampen the acoustic 
pressure and reduce the impact on marine mammals. By reducing 
underwater sound pressure levels at the source, bubble curtains would 
reduce the area over which Level B harassment would occur, thereby 
potentially reducing the numbers of marine mammals affected. In 
addition, the bubble curtain system would reduce sound levels below the 
threshold for injury (Level A harassment) and thus eliminate the need 
for an exclusion zone for Level A harassment.

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 August 1, 2015, and 
February 15, 2016.

Establishment of Exclusion Zone and Level B Harassment Zones of 
Influence

    Before the commencement of in-water pile driving activities, WSDOT 
shall establish Level B behavioral harassment ZOIs where received 
underwater sound pressure levels (SPLs) are higher than 160 dB (rms) 
and 120 dB (rms) re 1 [micro]Pa for impulse noise sources (impact pile 
driving) and non-impulses noise sources (vibratory pile driving and 
mechanic dismantling), respectively.
    For the test pile program, because glacial till soils will be 
harder to drive through, the assumed attenuation will be 8-10 dB, the 
same bubble-curtain attenuation used in the current consultation. Based 
on the 2009 Vashon Test Pile, source levels for impact driving of 30'' 
piles are 210 dB (peak), 181 dB (SEL), and 189 dB (rms) measured at 16 
m (Pile P-8 Unmitigated) (WSDOT 2010).
    The exclusion zones for Level A harassment and ZOIs for Level B 
harassment are modeled based on in-water measurements during the WSF 
Bainbridge Island Ferry Terminal and presented in Table 2 below.

        Table 2--Modeled Maximum Level A and Level B Harassment Zones for Various Pile Driving Activities
----------------------------------------------------------------------------------------------------------------
                                       Distance to 190    Distance to 180    Distance to 160    Distance to 121*
        Pile driving methods            dB re 1 [mu]Pa     dB re 1 [mu]Pa     dB re 1 [mu]Pa     dB re 1 [mu]Pa
                                          (rms)  (m)         (rms)  (m)         (rms)  (m)         (rms)  (m)
----------------------------------------------------------------------------------------------------------------
Impact pile driving.................                3.0                 12                251                 NA
Vibratory pile driving & removal (24-                NA                 NA                 NA              5,000
 in steel concrete-jacketed pile)...
Vibratory pile driving & removal (13-                NA                 NA                 NA              2,000
 in timber pile)....................
Vibratory pile removal (30-in steel                  NA                 NA                 NA             21,500
 pile)..............................
Test pile impact pile driving                       4.0                 19                402                 NA
 (assume 8 dB reduction using
 attenuation devices)...............
----------------------------------------------------------------------------------------------------------------
\*\ Since the median ambient noise level at the Project area is 121 dB re 1 [micro]Pa (rms), this level will be
  used as the threshold for vibratory pile driving and removal.

Soft Start

    A ``soft-start'' technique is intended to allow marine mammals to 
vacate the area before the pile driver reaches full power. Whenever 
there has been downtime of 30 minutes or more without pile driving, the 
contractor will initiate the driving with ramp-up procedures described 
below.
    Soft start for vibratory hammers requires contractors to initiate 
hammer noise for 15 seconds at reduced energy followed by a 1-minute 
waiting period. The procedure will be repeated two additional times. 
Soft start for impact hammers requires contractors to provide an 
initial set of three strikes from the impact hammer at 40 percent 
energy, followed by a 1-minute waiting period, then two subsequent 
three-strike sets. Each day, WSDOT will use the soft-start technique at 
the beginning of pile driving or removal, or if pile driving or removal 
has ceased for more than one hour.

Shutdown Measures

    WSDOT shall implement shutdown measures if a marine mammal is 
sighted approaching the Level A exclusion zone. In-water construction 
activities shall be suspended until the marine mammal is sighted moving 
away from the exclusion zone, or if the animal is not sighted for 30 
minutes after the shutdown.
    In addition, 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 
such marine mammals are sighted within the vicinity of the project area 
and are approaching the Level B harassment

[[Page 78832]]

zone during in-water construction activities.

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 
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 employee NMFS-approved protected species observers 
(PSOs) to conduct marine mammal monitoring for its Vashon Seismic 
Retrofit 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). 
Marine mammal visual monitoring will be conducted by land-based 
biologists at the terminal work sites, and boat-based biologist(s) 
travel through the monitoring area.
    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 weekly monitoring reports to NMFS 
that summarize the monitoring results,

[[Page 78833]]

construction activities, and environmental conditions.
    A final monitoring report would be submitted to NMFS within 90 days 
after completion of the construction work. 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 Vashon 
Seismic Retrofit Project.
    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), 190 dB
                                        (PTS) (Any level above that    re 1 [micro]Pa (pinnipeds), root mean
                                        which is known to cause TTS).  square (rms).
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).
----------------------------------------------------------------------------------------------------------------

    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. There will not be a zone 
for Level A harassment in this case, because the bubble curtain system 
will keep all underwater noise below the threshold for Level A 
harassment.

Sound Levels From Proposed Construction Activity

    As mentioned earlier, the project includes impact driving and 
proofing of 24-inch hollow steel piling, impact driving of 13-inch 
timber piling, and impact driving of 30-inch steel test piles.
    Based on in-water measurements during the WSF Bainbridge Island 
Ferry Terminal, impact pile driving of a 24-inch steel pile generated 
170 dB RMS (overall average), with the highest measured at 189 dB RMS 
measured at 10 meters (Laughlin 2005). A bubble curtain will be used to 
attenuate steel pile impact driving noise.
    For the test pile program, the more conservative cetacean injury 
zone (19 m/62 ft) will be used to set the 30-inch steel test pile 
exclusion zone.
    In-water measurements for impact driving of 13-inch timber piling 
are not available. Impact driving of 12-inch timber piling generated 
170 dB RMS (WSF 2014). The source level for 13-inch timber piles shall 
be assumed to be the same as 12-inch timber piles. A bubble curtain 
will not be used during impact driving of timber piles.
    Using practical spreading model to calculate sound propagation 
loss, Table 2 provides the estimated maximum distances for a variety of 
harassment zones.
    As explained above, exclusion zones and ZOIs will be established 
that encompass the areas where received underwater SPLs exceed the 
applicable thresholds for Level A and Level B harassment, respectively.
    Incidental take for each species is estimated by determining the 
likelihood of a marine mammal being present within a ZOI during pile 
removal and pile driving. Expected marine mammal presence is determined 
by past observations and general abundance near the Vashon Ferry 
Terminal during the construction window. Typically, 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 mammals. As a 
result, the take requests were estimated using local marine mammal data 
sets (e.g., Orca Network, state and federal agencies), opinions from 
state and federal agencies, and observations from Navy biologists.
    Based on the estimates, approximately 1,919 Pacific harbor seals, 
1,919 California sea lions, 644 Steller sea lions, 438 harbor 
porpoises, 136 Dall's porpoises, 54 killer whales (50 transient, 4 
Southern Resident killer whales), 71 gray whales, 36 humpback whales, 
and 36 minke whales could be exposed to received sound levels that 
could result in takes from the proposed Vashon Seismic Retrofit 
Project. A summary of the estimated takes is presented in Table 4.

[[Page 78834]]



Table 4--Estimated Numbers of Marine Mammals That May Be Exposed to Received Pile Removal Levels Above 121 dB re
                                                 1 [mu]Pa (rms)
----------------------------------------------------------------------------------------------------------------
                                                              Estimated  marine
                           Species                               mammal takes       Abundance       Percentage
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal.........................................              1,919          14,612             13
California sea lion.........................................              1,919         296,750              0.7
Steller sea lion............................................                644          63,160              1.0
Harbor porpoise.............................................                438          10,682              4.0
Dall's porpoise.............................................                136          42,000              0.3
Killer whale, transient.....................................                 50             521              9.6
Killer whale, Southern Resident.............................                  4              85              4.7
Gray whale..................................................                 71          19,126              0.4
Humpback whale..............................................                 36           1,918              1.9
Minke whale.................................................                 36             478              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 Vashon Seismic Retrofit Project would involve 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, if any, Level B harassment of marine mammals. 
WSDOT would use noise attenuation devices (i.e., bubble curtains) 
during the impact pile driving of steel piles, thus eliminating the 
potential for injury (including PTS) and TTS from impact driving. For 
vibratory pile removal and pile driving and impact pile driving of 
timber piles, 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.
    In addition, WSDOT's proposed activities are localized and of short 
duration. The entire project area is limited to WSDOT's Vashon ferry 
terminal in Vashon Island. The entire project would involve the removal 
of 106 existing timber piles and installation of 119 steel piles. In 
addition, 96 temporary piles will be installed and then removed during 
the project. The duration for pile driving and removal lasts for about 
10 to 120 minutes per pile, depending on the type and dimension of the 
pile. 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 Vashon Seismic Retrofit Project 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 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 Vashon Seismic Retrofit 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 1,919 harbor seals, 1,919 California sea lions, 644 
Steller sea lions, 438 harbor porpoises, 136 Dall's porpoises, 50 
transient killer whales, 4 Southern Resident killer whales, 71 gray 
whales, 36 humpback whales, and 36 minke whales could be exposed to 
received noise levels that could cause Level B behavioral harassment 
from the proposed construction work at the Vashon ferry terminal in 
Washington State. These numbers represent approximately 0.3% to 14% of 
the populations of these species that could be affected by Level B 
behavioral harassment, respectively (see Table 2 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,

[[Page 78835]]

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 Vashon Seismic Retrofit 
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 August 1, 2015, through July 
31, 2016.
    2. This Authorization is valid only for activities associated in-
water construction work at the Vashon Seismic Retrofit 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), transient and Southern Resident killer 
whales (Orcinus orca), 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> Impact and vibratory pile driving;
    <bullet> 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).
    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 4. 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) Use of Noise Attenuation Devices
    A pile driving energy attenuator (such as an air bubble curtain 
system) shall be used for all impact pile driving.
    (b) Time Restriction
    In-water construction work shall occur only during daylight hours, 
when visual monitoring of marine mammals can be conducted.
    (c) Establishment of Level B Harassment Zones of Influence
    (i) 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 160 dB (rms) and 120 dB (rms) re 1 [micro]Pa for impulse 
noise sources (impact pile driving) and non-impulses noise sources 
(vibratory pile driving and mechanic dismantling), respectively. The 
modeled isopleths for ZOIs are listed in Table 2.
    (ii) Once the underwater acoustic measurements are conducted during 
initial test pile driving, WSDOT shall adjust the sizes of the ZOIs, 
and monitor these zones as described under the Proposed Monitoring 
section below.
    (d) Monitoring of marine mammals shall take place starting 30 
minutes before pile driving begins until 30 minutes after pile driving 
ends.
    (e) 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) For vibratory hammers, the contractor shall initiate the 
driving for 15 seconds at reduced energy, followed by a 1 minute 
waiting period. This procedure shall be repeated two additional times 
before continuous driving is started. This procedure shall also apply 
to vibratory pile extraction.
    (iii) For impact driving, an initial set of three strikes would be 
made by the hammer at 40-percent energy, followed by a 1-minute waiting 
period, then two subsequent three-strike sets at 40-percent energy, 
with 1-minute waiting periods, before initiating continuous driving.
    (f) Power Down and 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(f)(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

[[Page 78836]]

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.
7. Monitoring
    (a) Protected Species Observers
    WSDOT shall employee 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 120 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 by land-
based biologists at the terminal work sites, and boat-based 
biologist(s) 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
    (v) During vibratory pile removal and driving, one land-based 
biologist would monitor the area from the terminal work site, and one 
monitor will move among a number of access points along the southern 
Sinclair Inlet shore. Binoculars shall be used during marine mammal 
monitoring.
    (vi) WSDOT shall contact the Orca Network and/or Center for Whale 
Research to find out the location of the nearest marine mammal 
sightings.
    (vii) WSDOT shall also utilize marine mammal occurrence information 
collected by the Orca Network using hydrophone systems to maximize 
marine mammal detection in the project vicinity.
8. Reporting
    (a) WSDOT shall provide NMFS with a draft monitoring report within 
90 days of the conclusion of the construction work. 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.
    (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

[[Page 78837]]

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 Bremerton Ferry Terminals.
    11. WSDOT is required to comply with the Terms and Conditions of 
the Incidental Take Statement corresponding to NMFS' Biological 
Opinion.

    Dated: December 23, 2014.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2014-30540 Filed 12-30-14; 8:45 am]
BILLING CODE 3510-22-P


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