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Notice2022-08135

Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to BNSF Railway Bridge Heavy Maintenance Project in King County, Washington

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Published

April 15, 2022

Effective

July 16, 2022

Issuing agencies

Commerce DepartmentNational Oceanic and Atmospheric Administration

Abstract

In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued two consecutive IHAs to the BNSF Railway (BNSF) to incidentally harass, by Level a and Level B harassment, marine mammals over 2 years during construction associated with the Railway Bridge Heavy Maintenance Project in King County, Washington.

Full Text

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<title>Federal Register, Volume 87 Issue 73 (Friday, April 15, 2022)</title>
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[Federal Register Volume 87, Number 73 (Friday, April 15, 2022)]
[Notices]
[Pages 22506-22520]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08135]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB891]

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to BNSF Railway Bridge Heavy
Maintenance Project in King County, Washington

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

ACTION: Notice; issuance of two incidental harassment authorizations.

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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued two consecutive IHAs to the BNSF Railway (BNSF) to
incidentally harass, by Level a and Level B harassment, marine mammals
over 2 years during construction associated with the Railway Bridge
Heavy Maintenance Project in King County, Washington.

DATES: The Year 1 Authorization is effective from July 16, 2022 to July
15, 2023. The Year 2 Authorization is effective from July 16, 2023 to
July 15, 2024.

FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.

[[Page 22507]]

SUPPLEMENTARY INFORMATION:

Background

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

Summary of Request

On August 17, 2021, NMFS received a request from BNSF Railway
(BNSF) for two consecutive IHAs allowing the take of marine mammals
incidental to construction associated with the Railway Bridge 0050-
0006.3 (Bridge 6.3) Heavy Maintenance Project in King County,
Washington. The application was deemed adequate and complete on
November 22, 2021. BNSF's request is for take of a small number of
seven species of marine mammal by Level B harassment and Level A
harassment. Neither BNSF nor NMFS expects serious injury or mortality
to result from this activity and, therefore, IHAs are appropriate.

Description of Planned Activity

Overview

The purpose of this project is to extend the service life of the
existing structure by replacing several components of the existing
movable span including replacing the existing counterweight,
counterweight trunnion bearings, and rocker frame system of the
existing movable span. This work would occur over 2 years, requiring
the issuance of two consecutive IHAs. BNSF is planning to engage in
maintenance activities at Bridge 6.3, a bridge with a movable deck to
allow vessels to pass. In-water activities that could result in take of
marine mammals include impact pile driving of 36-inch temporary steel
piles (which will be removed via cutting with Broco Rod which is not
likely to cause take), vibratory installation and extraction of 14-inch
H-piles, vibratory installation and extraction of 12-inch timber piles,
hydraulic clipper cutting and extraction of 12-inch timber piles,
drilling of 48-inch diameter shafts using oscillator rotator equipment,
and removing the pile created by filling the drilled shaft and steel
casing with concrete and removing the casing with a diamond wire saw.
BSNF estimates that the project will requires approximately 122 days of
in-water work over 24 months. The IHAs would be effective from July 16,
2022 to July 15, 2023 for Year 1, which would include 113 days of in-
water activities and July 16, 2023 to July 15, 2024 for Year 2, which
would include 9 days of in-water activities. Table 1 provides a summary
of the pile driving activities.
A detailed description of the planned testing activities is
provided in the Federal Register notice of the proposed IHAs (87 FR
4844; January 31, 2022). Since that time, no changes have been made to
the project activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
description of the specified activities.

Table 1--Summary of Pile Driving Activities and User Spreadsheet Inputs
----------------------------------------------------------------------------------------------------------------
Minutes/ Length of
Pile size Pile type Construction Piles/shafts strikes per activity
method per day pile (days)
----------------------------------------------------------------------------------------------------------------
36 inch................. Steel pipe........ Impact............ 6 1,000 20
14 inch................. H-pile............ Vibratory......... 8 30 6
12 inch................. Timber Pile....... Vibratory......... 10 15 8
12 inch................. Timber Pile....... Hydraulic Pile 20 4 4
Clipper.
48-inch................. Steel Shaft....... Oscillator........ 0.25 1,920 88
48-inch................. Steel-encased Diamond bladed 4 60 6
Concrete Shaft. wire saw.
----------------------------------------------------------------------------------------------------------------

Comments and Responses

A notice of NMFS's proposal to issue IHAs to DAF was published in
the Federal Register on January 31, 2022 (87 FR 4844). That proposed
notice described, in detail, BNSF's activities, the marine mammal
species that may be affected by the activities and the anticipated
effects on marine mammals. During the 30-day public comment period,
NMFS received no public comments or comments from the Marine Mammal
Commission.

Changes From the Proposed IHAs to Final IHAs

No changes have been made from the notice of proposed IHAs.

Description of Marine Mammals in the Area of Specified Activities

Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history, of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks for which take is expected and
authorized for this action, and summarizes information related to the
population or stock, including regulatory status under the MMPA and
Endangered Species Act (ESA) and potential biological removal (PBR),
where known. For taxonomy, we follow Committee on Taxonomy (2021).

[[Page 22508]]

PBR is defined by the MMPA as the maximum number of animals, not
including natural mortalities, that may be removed from a marine mammal
stock while allowing that stock to reach or maintain its optimum
sustainable population (as described in NMFS's SARs). While no
mortality is anticipated or authorized here, PBR and annual serious
injury and mortality from anthropogenic sources are included here as
gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. SARs (e.g., Carretta et al., 2021a). All values presented
in Table 2 are the most recent available at the time of publication and
are available in the 2020 U.S. Pacific SARs (Carretta et al., 2021a)
and 2021 draft Pacific and Alaska SARs (Carretta et al., 2021b, Muto et
al., 2021) available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>.

Table 2--Species Authorized for Take
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\a\ abundance survey) \b\ SI \c\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (rorquals):
Minke whale..................... Balaenoptera California/Oregon/ -, -, N 915 (0.792, 509, 2018) 4.1 >=0.59
acutorostrata. Washington.
Family Delphinidae:
Common Bottlenose Dolphin....... Tursiops truncatus..... California/Oregon/ -, -, N 3,477 (0.696, 2,048, 19.70 0.82
Washington offshore. 2018).
Long-beaked Common Dolphin...... Delphinus capensis..... California............. -, -, N 83,379 (0.216, 69,636, 668 >=29.7
2018).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Washington Inland -, -, N 11,233 (0.37, 8,308, 66 >=7.2
Waters. 2015).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
sea lions):
California Sea Lion............. Zalophus californianus. United States.......... -, -, N 257,606 (N/A, 233,515, 14,011 >320
2014).
Steller sea lion................ Eumetopias jubatus Eastern U.S............ -, -, N 43,201 \e\ (see SAR, 2,592 113
monteriensis. 43,201, 2017).
Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina......... Washington Northern -, -, N 1,088 (0.15, UNK, NA 10.6
Inland Waters. 1999) \f\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\b\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\c\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual mortality/serious injury (M/SI) often cannot be determined precisely and is in some cases presented as a
minimum value or range.
\d\ Based on counts of individual animals identified from photo-identification catalogues. Surveys for abundance estimates of these stocks are conducted
infrequently.
\e\ Best estimate of pup and non-pup counts, which have not been corrected to account for animals at sea during abundance surveys.
\f\ The abundance estimate for this stock is greater than eight years old and is therefore not considered current. PBR is considered undetermined for
this stock, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates, as
these represent the best available information for use in this document.

A detailed description of the species likely to be affected by
BNSF's activities, including brief information regarding population
trends and threats, and information regarding local occurrence, were
provided in the Federal Register notice for the proposed IHA (87 FR
4844; January 31, 2022). Since that time, we are not aware of any
changes in the status of these species and stocks; therefore, detailed
descriptions are not provided here. Please refer to that Federal
Register notice for those descriptions. Please also refer to NMFS's
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for generalized
species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their
Habitat

The effects of testing activities have the potential to result in
behavioral harassment of marine mammals in the vicinity of the study
area. The Federal Register notice for the proposed IHAs (87 FR 4844;
January 31, 2022) included a discussion of the effects of anthropogenic
noise on marine mammals and their habitat, therefore that information
is not repeated here; please refer to the Federal Register notice (87
FR 4844; January 31, 2022) for that information.

Estimated Take

This section provides an estimate of the number of incidental takes
authorized through this IHA, which will inform both NMFS' consideration
of ``small numbers'' and the negligible impact determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);

[[Page 22509]]

or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as use
of the acoustic sources for pile installation and extraction has the
potential to result in disruption of behavioral patterns for individual
marine mammals. There is also some potential for auditory injury (Level
A harassment) to result, primarily for harbor seals, because predicted
auditory injury zones are large. Auditory injury is unlikely to occur
for low-frequency cetaceans, mid-frequency cetaceans, high-frequency
cetaceans, and otariids. The planned mitigation and monitoring measures
are expected to minimize the severity of the taking to the extent
practicable.
As described previously, no mortality is anticipated or authorized
for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and, (4)
the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the authorized take
estimate.

Acoustic Thresholds

NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment for non-explosive sources--Though significantly
driven by received level, the onset of behavioral disturbance from
anthropogenic noise exposure is also informed to varying degrees by
other factors related to the source (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al., 2007,
Ellison et al., 2012). Based on what the available science indicates
and the practical need to use a threshold based on a factor that is
both predictable and measurable for most activities, NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals are
likely to be behaviorally harassed in a manner we consider Level B
harassment when exposed to underwater anthropogenic noise above
received levels of 120 dB re 1 [mu]Pa (rms) for continuous (e.g.,
vibratory pile-driving, drilling) and above 160 dB re 1 [mu]Pa (rms)
for non-explosive impulsive (e.g., seismic airguns) or intermittent
(e.g., scientific sonar) sources.
BNSF's planned activity includes the use of continuous (vibratory
pile driving and removal, oscillator rotator equipment, wire saw
cutting, clipping) and impulsive (impact pile driving) equipment, and
therefore both the 120- and 160-dB re 1 [mu]Pa (rms) thresholds are
applicable.
Level A harassment for non-explosive sources--NMFS' Technical
Guidance for Assessing the Effects of Anthropogenic Sound on Marine
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual
criteria to assess auditory injury (Level A harassment) to five
different marine mammal groups (based on hearing sensitivity) as a
result of exposure to noise from two different types of sources
(impulsive or non-impulsive). BNSF's planned activity includes the use
of impulsive (impact pile driving) and non-impulsive (vibratory pile
driving) sources.
These thresholds are provided in Table 3 below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS 2018 Technical Guidance, which may be accessed at
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.

Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
a reference value of 1[mu]Pa\2\s. In this Table, thresholds are abbreviated to reflect American National
Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.

Ensonified Area

Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.

[[Page 22510]]

The following pile sizes and installation/extraction methods were
analyzed:
<bullet> 36-inch steel pipe pile, impact installation, with 5 dB
bubble curtain source level reduction under two installation scenarios
(1 pile driver or 2 concurrent pile drivers);
<bullet> 48-inch steel pipe pile, oscillator installation (drilled
shaft);
<bullet> 48-inch steel pipe pile, diamond wire saw cutting;
<bullet> 14-inch steel H-pile, vibratory installation/extraction;
<bullet> 12-inch timber pile, vibratory installation/extraction;
and
<bullet> 12-inch timber pile, pile clipper extraction.
Impact pile driver installation of 36-inch steel pipe piles
analyzed a worst-case scenario consisting of two crews driving 36-inch
steel pipe piles simultaneously (Scenario 2) in order to provide
maximum flexibility should multiple crews become necessary during
construction. It is likely, however, that only one crew will operate at
one time (Scenario 1). Based on NMFS guidance, decibel addition is not
considered in the 36-inch steel pipe pile impact analysis since during
impact hammering or other impulsive sources, it is unlikely that the
two hammers would strike at the same exact instant (or within the 0.1
second average pulse duration). Therefore, the sound source levels will
not be adjusted regardless of the distance between the hammers and each
source will be analyzed separately.
Vibratory pile driving of 14-inch H-piles, and vibratory and pile
clipper extraction of 12-inch timber piles (residential structures
demolition) were analyzed in the event these methods become necessary
(if, for instance, crane weight alone cannot seat the 14-inch H-piles
for the turbidity screen installation or crane torque alone cannot
extract timber piles by direct pulling/twisting).
This analysis uses in-water source sound levels for vibratory and
impact pile driving from Washington State Department of Transportation
Biological Assessment Manual (WDSOT 2020), and California Department of
Transportation Division (Caltrans 2015). Analysis of drilled shaft
installation used sound source data came from (HDR, 2011. Diamond wire
saw cutting and hydraulic pile clipper cutting came from the Navy
(2019). Source sound levels for each analysis were measured at 10m from
the source and based on other projects with the same pile type and
size, installation/extraction technique, and similar substrate if no
project site-specific information is available.
In cases where multiple sources were provided from the above
references, the following methodology was used to select in-water
source sound levels to generate a proxy:
1. Select first by corresponding pile size and type;
2. Eliminate those that do not have substrates similar to the
project site substrate (i.e., sandy silt intermixed with gravels and
riprap); and
3. Of the remaining, select highest source sound level to be
conservative.
All piles driven and/or proofed with an impact hammer would use a
bubble curtain. It is estimated that use of a bubble curtain would
result in a minimum of a 5-dB reduction in underwater sound levels
during 36-inch pipe pile driving, and this reduction has been included
in the estimate to account for a reasonably achievable reduction in
sound during underwater construction activity. Source sound levels are
summarized in Table 4.

Table 4--In-Water Sound Source Levels
----------------------------------------------------------------------------------------------------------------
dB single-
Pile size Pile type Source Construction method dB peak dB RMS strike
SEL
----------------------------------------------------------------------------------------------------------------
36 inch......... Steel pipe......... Caltrans, 2015. 36- Impact............. 208 190 180
inch steel pipe
pile Table I.2-1.
14 inch......... H-pile............. Caltrans, 2015. 12- Vibratory.......... ......... 150 .........
inch steel H-pile
proxy Table I.2-2.
12 inch......... Timber Pile........ Greenbusch Group, Vibratory.......... ......... 152 .........
2018. 12-inch
timber pile.
12 inch......... Timber Pile........ NAVFAC SW 2020 Hydraulic Pile ......... 154 .........
Compendium. 13- Clipper.
inch round
polycarbonate pile.
48-inch......... Steel Shaft........ HDR Alaska, Inc., Oscillator......... ......... 143.8 .........
2011. 144-inch
steel shaft proxy.
48-inch......... Steel-encased NAVFAC SW 2020 Diamond bladed wire ......... 161.5 .........
Concrete Shaft. Compendium. 66- saw.
inch steel encased
concrete-filled
caisson proxy.
----------------------------------------------------------------------------------------------------------------

Transmission loss (TL), expressed as decibels, is the reduction in
a specified level between two specified points R<INF>1</INF>,
R<INF>2</INF> that are within an underwater acoustic field. By
convention, R<INF>1</INF> is chosen to be closer to the source of sound
than R<INF>2</INF>, such that transmission loss is usually a positive
quantity. TL parameters vary with frequency, temperature, sea
conditions, current, source and receiver depth, water depth, water
chemistry, and bottom composition and topography. The general formula
for underwater TL is:

TL = B * Log<INF>10</INF> (R<INF>2</INF>/R<INF>1</INF>),

Where

TL = transmission loss in dB
B = transmission loss coefficient
R<INF>1</INF> = distance from source to distance at which the level
is estimated (typically 10-m for pile driving)
R<INF>2</INF> = distance from source to the isopleth associated with
the applicable acoustic threshold

Absent site-specific acoustical monitoring with differing measured
transmission loss, a practical spreading value of 15 is used as the
transmission loss coefficient in the above formula. Site-specific
transmission loss data for BNSF bridge site is not available, therefore
the default coefficient of 15 is used to determine the distances to the
Level A and Level B harassment thresholds.
When the NMFS Technical Guidance (2016) was published, in
recognition of the fact that ensonified area/volume could be more
technically challenging to predict because of the duration component in
the new thresholds, we developed a User Spreadsheet that includes tools
to help predict a simple isopleth that can be used in conjunction with
marine mammal density or occurrence to help predict takes. We note that
because of some of the assumptions included in the methods used for
these tools, we anticipate that isopleths produced are typically going
to be overestimates of some degree, which may result in some degree of
overestimate of Level A harassment take. However, these tools offer the
best way to predict appropriate isopleths when more sophisticated 3D
modeling methods are not available, and NMFS continues to develop ways
to quantitatively refine these tools, and will qualitatively address
the output where appropriate. For stationary sources, NMFS User
Spreadsheet predicts the distance at which, if a marine mammal remained
at that distance the whole duration of the activity, it would incur
PTS. Inputs used in the User Spreadsheet are shown in Table 5 and the
resulting isopleths are reported below in Table 6.

[[Page 22511]]

Table 5--User Spreadsheet Input Parameters Used for Calculating Level A Harassment Isopleths
--------------------------------------------------------------------------------------------------------------------------------------------------------
36-inch steel-- 14-inch steel H- 12-inch timber
36-inch steel 2 concurrent pile vibratory vibratory 48-inch steel 48-inch wire 12-inch timber
(scenario 1) (scenario 2) install extraction oscillator saw cutting clipper cutting
--------------------------------------------------------------------------------------------------------------------------------------------------------
Spreadsheet Tab Used......... (E.1) Impact (E.1) Impact (A.1) Vibratory (A.1) Vibratory (A) stationary (A) stationary (A) stationary
pile driving. pile driving. pile driving. pile driving. source (non- source (non- source (non-
impulsive, impulsive, impulsive,
continuous). continuous). continuous).
Source Level (Single Strike/ 175 SEL/203 Peak 175 SEL/203 Peak 150 RMS......... 152 RMS......... 143.8 RMS...... 161.5 RMS...... 154 RMS.
shot SEL) and Peak or RMS.
Weighting Factor Adjustment 2............... 2............... 2.5............. 2.5............. 2.5............ 2.5............ 2.5.
(kHz).
(a) Number of strikes per 1000............ 1000............
pile.
Number piles or shafts per 6............... 12.............. 8............... 10.............. 0.25........... 4.............. 20.
day.
Duration for single pile ................ ................ 30.............. 15.............. 1920........... 60............. 4.
(min).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Transmission loss coefficient for all sources is 15 and all source level values quoted are at 10m distance.

Table 6--Calculated Distances to Level A and Level B Harassment Isopleths
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A zone (meters) Level B
----------------------------------------------------------------- harassment
Pile type, size, and pile driving method LF MF HF zone
cetacean cetacean cetacean Phocid Otariid (meters)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Scenario 1. 36-inch Steel Pipe Impact Drive (Year 1)...................... 966 34 1,150 517 38 464
Scenario 2. 36-inch Steel Pipe Impact Drive (Year 1)...................... 1,533 55 1,826 820 60 464
14-inch H-Pile Vibratory (Year 1, Year 2)................................. 3 1 5 2 1 1,000
12-inch Timber Vibratory (Year 1)......................................... 3 1 5 2 1 1,359
48-inch Drilled Shaft Oscillatory Installation (Year 1)................... 0.2 0 0.2 0.1 0 386
48-inch Concrete-lined Steel Shaft Diamond Wire Saw Removal (Year 2)...... 1.9 0.2 2.7 1.1 0.1 5,843
12-inch Timber Pile Clipper (Year 1)...................................... 0.6 0 0.6 0.3 0 1,848
--------------------------------------------------------------------------------------------------------------------------------------------------------

Marine Mammal Occurrence and Take Calculation and Estimation

In this section we provide the information about the presence,
density, or group dynamics of marine mammals and how it is brought
together to produce a quantitative take estimate.
Take estimates were calculated using a combination of best
available data. Best available density data was for the most part from
the U.S. Department of the Navy's Marine Species Density Database Phase
III for the Northwest Training and Testing Study Area (Navy 2019) which
includes seasonal density estimates: Winter (Dec-Feb), Spring (Mar-
May), Summer (Jun-Aug), Fall (Sep-Nov). The project will not work in-
water in the Spring as that season is outside the July 16-February 15
in-water work season. The most conservative (highest density) seasonal
estimate from the remaining three seasons was used where seasonal
overlap exists and densities differ across seasons. Estimated take was
calculated using density estimates multiplied by the area of each Level
B harassment zone for each pile type multiplied by the number of days
of in-water activity for each pile type. In some instances and where
noted, observation-based data from WSDOT's Seattle Multimodal Project
at Colman Dock Season Three Marine Mammal Monitoring Report (WSDOT
2020a) or other observational data was used instead of U.S. Navy data
when Navy density data was zero or extremely low.
BNSF plans to work in-water for 113 days in Year 1 and 9 days in
Year 2, or approximately 5.5 months assuming a 5-day work week for 23
weeks in Year 1 and a half a month assuming a 5-day work week for 2
weeks in Year 2,

Minke Whale

The estimated take was calculated as described above using the
Navy's density data which resulted in zero takes of minke whale for
both Year 1 and Year 2 as shown in Table 7. Therefore, as described
above, we looked at other observational data. The WSDOT Seattle
Multimodal Project at Colman Dock Year 3 IHA Monitoring Report observed
minke whale presence indicates sightings of a single minke whale over 7
months (WSDOT 2020a). Given this information, BNSF and NMFS
conservatively assumed that up to one whale per month could be taken by
harassment.
A shutdown zone at the full distance of the level A harassment
isopleths (<= 1533 m) will be applied to avoid take by Level A
harassment.
The 113 days of work in Year 1 and 9 days in Year 2, equates to 5.5
months x 1 minke whale/month = 6 encounters with minke whales in Year 1
and 0.5 months x 1 Minke whale/month = 1 whale in Year 2. Therefore,
BNSF has requested and NMFS has authorized 6 takes by Level B
harassment in Year 1 and 1 take by Level B harassment in year in Year
2.

Table 7--Calculated Take of Minke Whale
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
density Level A Level B Year 1 Year 1 Year 2 Year 2
Activity (animals/ area area Length of activity (days) estimated estimated estimated estimated
km\2\) (km\2\) (km\2\) take A take B take A take B
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact 36-inch Steel Pipe Pile (2 0.0000054 0.376 0.183 10 (Yr 1)...................... 0 0 ......... .........
Concurrent Drivers).
Vibratory 14-inch H-Pile................ 0.0000054 0.005 0.235 6 (3 Yr 1, 3 Yr 2)............. 0 0 0 0
Vibratory 12-inch Timber Pile........... 0.0000054 0.005 0.286 8 (Yr 1)....................... 0 0 ......... .........

[[Page 22512]]

Oscillator Install of 4-foot Drilled 0.0000054 0.000 0.169 88 (Yr 1)...................... 0 0 ......... .........
Shaft.
Diamond Wire Saw Removal of 48-inch 0.0000054 0.000 2.290 6 (Yr 2)....................... ......... ......... 0 0
Drilled Shaft.
24-inch Pile Clipper Removal of 12-inch 0.0000054 0.000 0.381 4 (Yr 1)....................... 0 0 ......... .........
Timber Pile.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Common Bottlenose Dolphin

Estimated take using the Navy's density estimates for common
bottlenose dolphins as described above resulted in zero take in both
Year 1 and Year 2 as shown in Table 8. Therefore, as described above,
we looked at other observational data. Common bottlenose dolphins have
been rare visitors to Puget Sound. However, the WSDOT Seattle
Multimodal Project at Colman Dock Year 3 IHA monitoring report observed
common bottlenose dolphin at a rate of 6 per month (WSDOT 2020a). In-
water work will occur for 113 days in Year 1 and 9 days in Year 2,
which would equate to 33 dolphin takes in Year 1 (5.5 months x 6
dolphins/month) and 3 dolphin takes in Year 2 (0.5 months x 3 dolphins/
month). A shutdown zone at the full distance of the level A harassment
isopleths (<=55m) can be effectively applied to avoid Level A take.
Therefore, BNSF has requested and NMFS has authorized 33 takes by Level
B harassment in Year 1 and 3 takes by Level B harassment in year in
Year 2.

Table 8--Calculated Take of Bottlenose Dolphin
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
density Level A Level B Year 1 Year 1 Year 2 Year 2
Activity (animals/ area area Length of activity (days) estimated estimated estimated estimated
km\2\) (km\2\) (km\2\) take A take B take A take B
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact 36-inch Steel Pipe Pile (2 0.0000054 0.376 0.183 10 (Yr 1)...................... 0 0 ......... .........
Concurrent Drivers).
Vibratory 14-inch H-Pile................ 0.0000054 0.005 0.235 6 (3 Yr 1, 3 Yr 2)............. 0 0 0 0
Vibratory 12-inch Timber Pile........... 0.0000054 0.005 0.286 8 (Yr 1)....................... 0 0 ......... .........
Oscillator Install of 4-foot Drilled 0.0000054 0.000 0.169 88 (Yr 1)...................... 0 0 ......... .........
Shaft.
Diamond Wire Saw Removal of 48-inch 0.0000054 0.000 2.290 6 (Yr 2)....................... ......... ......... 0 0
Drilled Shaft.
24-inch Pile Clipper Removal of 12-inch 0.0000054 0.000 0.381 4 (Yr 1)....................... 0 0 ......... .........
Timber Pile.
---------------------------------------------------------------------------------------------------------------
Total............................... ........... ......... ......... 122............................ 0 0 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------

Long-Beaked Common Dolphin

Using the Navy's density data, which was zero, estimated take of
common dolphins was calculated to be zero in Year 1 and Year 2.
Therefore, as described above, we looked at other observational data.
Sightings of live dolphins throughout inside waters and Southern Puget
Sound have been recorded in 2003, 2011-12, and 2016-17. Group size
ranged from 2 (in 2003 and 2011-12) to 5-12 (in 2016-2017) (Shuster et
al. 2017). Since June 2016, several common dolphins have remained in
Puget Sound, group sizes of 5-20 individuals are often reported and
some of these groups stayed in the region for several months. Sightings
of these animals mostly began in summer and early fall sometimes
extending into winter months. (Shuster et al., 2018). We conservatively
predict that a group of 20 individuals will be taken on a monthly
basis. The Level A harassment shutdown zone for mid-frequency hearing
group will be implemented to minimize the severity of any Level A
harassment that could occur. The in-water work would occur for 113 days
in Year 1 and 9 days in Year 2, which would result in 110 takes (5.5
months x 20 dolphins/month) in Year 1 and 20 takes (1 month x 20
dolphins/month) in Year 2 by Level B harassment. BNSF has requested and
NMFS has authorized 110 takes of long-beaked common dolphin by Level B
harassment in Year 1 and 10 takes by Level B harassment in year in Year
2.

Harbor Porpoise

Harbor porpoise density estimates based on the Navy's data were
used to calculate requested and authorized take as shown in Table 9.
Analysis of the size of the level A harassment zones multiplied by
density associated with harbor porpoise predicted that two porpoises
could be taken by Level A harassment during the 10 days that concurrent
driving of 36-in steel piles occurs during year 1. However, take by
Level A harassment is unlikely given that the threshold and associated
PTS isopleth is based on the acoustic energy accrued over a specified
time period and it is unlikely that a highly mobile animal such as the
harbor porpoise would spend the that amount if time in the Level A
harassment zone. However, given the larger size of the zone and the
cryptic nature of harbor porpoises, we have precautionarily authorized
2 takes by Level A harassment for Year 1. The Level A harassment shut
down zone for high frequency hearing group will be implemented to
minimize severity of any Level A harassment takes that do occur. Since
there will be no impact driving during Year 2, the size of the Level A
harassment zone will not exceed 5 m and, therefore, no take by Level A
harassment was requested and none has been authorized. BNSF has
requested and NMFS has authorized 12 takes of harbor porpoise by Level
B harassment in Year 1 and 8 takes by Level B harassment in year in
Year 2.

Table 9--Calculated Take of Harbor Porpoise
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
density Level A Level B Year 1 Year 1 Year 2 Year 2
Activity (animals/ area area Length of activity (days) estimated estimated estimated estimated
km\2\) (km\2\) (km\2\) take A take B take A take B
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact 36-inch Steel Pipe Pile (2 0.54 0.376 0.183 10 (Yr 1)...................... 2 1 ......... .........
Concurrent Drivers).

[[Page 22513]]

Vibratory 14-inch H-Pile................ 0.54 0.005 0.235 6 (3 Yr 1, 3 Yr 2)............. 0 1 0 1
Vibratory 12-inch Timber Pile........... 0.54 0.005 0.286 8 (Yr 1)....................... 0 1 ......... .........
Oscillator Install of 4-foot Drilled 0.54 0.000 0.169 88 (Yr 1)...................... 0 8 ......... .........
Shaft.
Diamond Wire Saw Removal of 48-inch 0.54 0.000 2.290 6 (Yr 2)....................... ......... ......... 0 7
Drilled Shaft.
24-inch Pile Clipper Removal of 12-inch 0.54 0.000 0.381 4 (Yr 1)....................... 0 1 ......... .........
Timber Pile.
---------------------------------------------------------------------------------------------------------------
Total............................... ........... ......... ......... 122............................ 2 12 0 8
--------------------------------------------------------------------------------------------------------------------------------------------------------

Harbor Seal

Harbor seal density estimates based on data from the Navy were
initially used to calculate requested and authorized take (Table 10).
These estimates, however, do not account for numerous seals feeding on
migrating salmonids at Ballard Locks, especially during.summer (June-
September) months. A new acoustic deterrent device was tested over two
years to keep seals away from the Locks (Bogaard, Pers. Comm, 2022). A
study report is currently being developed for publication. Study
observers were primarily focused on behavioral effects of the deterrent
on seals and monitored seal behavioral reactions during 30 minute
observation periods up to eight times per day. Actual seal abundance
was not recorded. However, observers noted that groups of 5-6 harbor
seals were very common from late June through September during the
salmon run, although smaller numbers were present throughout the year.
It is likely that many of the same animals were observed multiple times
across daily observation periods. The in-water work window runs from
July 16, 2022 through February 15, 2023. Given this information, NMFS
assumed for Year 1 that during the 54 in-water work days between July
16, 2022 and September 30, 2022, 5 harbor seals would be taken per day
(270 takes). For the remaining 59 in-water work days between October 1,
2022 and February 15, 2023, a single harbor seal would be taken per day
(59) for a total of 329 takes. There are 10 in-water work days that
include concurrent impact driving of 36-inch piles when the Level A
harassment isopleth is relatively large (1,826 m) (and also exceeds the
Level B harassment isopleth (464 m)) so it is possible that Level A
harassment could occur in some animals. Also, note that the constrained
design of the lock system means that seals would likely spend extended
periods in the confined area while feeding. NMFS conservatively assumes
that all of these 10 in-water work days would occur during salmon
migration (February 15-Sept 30) and that up to one-third of seals taken
per day (2) could be exposed to sound energy levels resulting in some
degree of Level A harassment (20). The estimated takes by Level A
harassment is subtracted from the Level B harassment take to avoid
double-counting. Since a smaller number of seals expected to be present
during non-migratory period and the seals would have little incentive
to congregate near the locks in the absence of salmon, NMFS does not
expect any Level A harassment of seals to occur. Therefore, NMFS is
proposing during Year 1 to authorize 20 takes by Level A harassment and
309 takes by Level B harassment (329-20).
For Year 2, NMFS assumed that all 9 in-water work days would occur
during salmon migration between July 16, 2023 and September 30, 2024
with up to 6 harbor seals taken per day (54). No Level A take
harassment is authorized during Year 2 since the largest Level A
isopleth for all planned activities is 2 m. However, the density-based
estimate was 57 takes as shown in Table 10. Therefore, NMFS is
proposing 57 takes of harbor seal by Level B harassment during Year 2.

Table 10--Calculated Take of Harbor Seal
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
density Level A Level B Year 1 Year 1 Year 2 Year 2
Activity (animals/ area area Length of Activity (days) estimated estimated estimated estimated
km\2\) (km\2\) (km\2\) take A take B take A take B
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact 36-inch Steel Pipe Pile (2 3.91 0.215 0.183 10 (Yr 1)...................... 8 7 ......... .........
Concurrent Drivers).
Vibratory 14-inch H-Pile................ 3.91 0.005 0.235 6 (3 Yr 1, 3 Yr 2)............. 0 3 0 3
Vibratory 12-inch Timber Pile........... 3.91 0.005 0.286 8 (Yr 1)....................... 0 9 ......... .........
Oscillator Install of 4-foot Drilled 3.91 0.005 0.169 88 (Yr 1)...................... 0 58 ......... .........
Shaft.
Diamond Wire Saw Removal of 48-inch 3.91 0.005 2.290 6 (Yr 2)....................... ......... ......... 0 54
Drilled Shaft.
24-inch Pile Clipper Removal of 12-inch 3.91 0.005 0.381 4 (Yr 1)....................... 0 6 ......... .........
Timber Pile.
---------------------------------------------------------------------------------------------------------------
Total............................... ........... ......... ......... 122............................ 8 83 0 57
--------------------------------------------------------------------------------------------------------------------------------------------------------

California Sea Lion

BNSF initially considered California sea lion density estimates to
calculate requested take, which resulted in relatively low estimates (4
takes in Year 1 and 3 takes in Year 2 by Level B harassment) as shown
in Table 11. However, California sea lions are known to frequent the
Ballard Locks to feed on migrating salmon (KUOW, 2020). While no formal
research studies have recorded individual numbers of California sea
lions at Ballard Locks, news articles reported accounts of California
sea lion sightings which ranged from a few to many more (Hakai
Magazine, 2018; King 5 News, 2021). Observers associated with the
acoustic deterrent device study described above, reported that
California sea lions were less numerous than harbor seals, having been
seen at a rate of 2-3 per day during peak salmonid migration (Bogaard,
Pers. Comm. 2022). They were less common during non-migratory seasons.
Given this information, NMFS assumed for Year 1 that during the 54 in-
water work days between July 16, 2022 and September 30, 2022, 2
California sea lions would be taken per day (108). For the remaining 59
in-water work days between October 1, 2022 and February 15, 2023, a
single California sea lion

[[Page 22514]]

would be taken very third day (20). Take by Level A harassment is
possible, but unlikely, given that the largest Level A harassment
isopleth is 60 m (with a 10 m shutdown zone for otariids) but only
during 10 in-water work days which would include impact driving during
Year 1. The Level A harassment zone during all other in-water work days
in both Year 1 and Year 2 is 1 m or less. A California sea lion would
not be expected to remain within the injury zone long enough (5.4
hours) to accrue the amount energy that would result in take Level A
harassment. As such, NMFS is proposing during Year 1 to authorize 128
takes by Level B harassment. No takes by Level A harassment are
authorized.
For Year 2, NMFS assumed that all 9 in-water work days would occur
during peak salmon migration between July 16, 2023 and September 30,
2024 with up to 2 California sea lions taken per day (18). NMFS is
proposing to authorize 18 takes of California sea lion by Level B
harassment. No Level A take harassment is authorized.

Table 11--Calculated Take of California Sea Lions by Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
density Level A Level B Year 1 Year 1 Year 2 Year 2
Activity (animals / area area Length of activity (days) estimated estimated estimated estimated
km\2\) (km\2\) (km\2\) take A take B take A take B
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact 36-inch Steel Pipe Pile (2 0.2211 0.023 0.183 10 (Yr 1)...................... 0 0 ......... .........
Concurrent Drivers).
Vibratory 14-inch H-Pile................ 0.2211 0.004 0.235 6 (3 Yr 1, 3 Yr 2)............. 0 0 0 0
Vibratory 12-inch Timber Pile........... 0.2211 0.004 0.286 8 (Yr 1)....................... 0 1 ......... .........
Oscillator Install of 4-foot Drilled 0.2211 0.000 0.169 88 (Yr 1)...................... 0 3 ......... .........
Shaft.
Diamond Wire Saw Removal of 48-inch 0.2211 0.000 2.290 6 (Yr 2)....................... ......... ......... 0 3
Drilled Shaft.
24-inch Pile Clipper Removal of 12-inch 0.2211 0.000 0.381 4 (Yr 1)....................... 0 0 ......... .........
Timber Pile.
---------------------------------------------------------------------------------------------------------------
Total............................... ........... ......... ......... ............................... ......... 4 ......... 3
--------------------------------------------------------------------------------------------------------------------------------------------------------

Stellar Sea Lion

Stellar sea lion density estimates were initially used to calculate
requested take as shown in Table 12. Based on the density data, BNSF
has requested a single take for both Year 1 and Year 2. Given the large
number of in-water work days in Year 1, NMFS has precautionarily
increased the authorized Level B harassment to 5 takes while
maintaining the 1 authorized by Level B harassment as calculated by
density estimates in Year 2. Monitors with the acoustic deterrent study
did not observe any Steller sea lions during the two years that the
study was underway (Bogaard, Pers. Comm, 2022).

Table 12--Calculated Take of Steller Sea Lions by Level B Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
density Level A Level B Year 1 Year 1 Year 2 Year 2
Activity (animals / area area Length of activity (days) estimated estimated estimated estimated
km\2\) (km\2\) (km\2\) take A take B take A take B
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact 36-inch Steel Pipe Pile (2 0.0478 0.023 0.183 10 (Yr 1)...................... 0 0 ......... .........
Concurrent Drivers).
Vibratory 14-inch H-Pile................ 0.0478 0.004 0.235 6 (3 Yr 1, 3 Yr 2)............. 0 0 0 1
Vibratory 12-inch Timber Pile........... 0.0478 0.004 0.286 8 (Yr 1)....................... 0 0 ......... .........
Oscillator Install of 4-foot Drilled 0.0478 0.000 0.169 88 (Yr 1)...................... 0 1 ......... .........
Shaft.
Diamond Wire Saw Removal of 48-inch 0.0478 0.000 2.290 6 (Yr 2)....................... ......... ......... 0 0
Drilled Shaft.
24-inch Pile Clipper Removal of 12-inch 0.0478 0.000 0.381 4 (Yr 1)....................... 0 0 ......... .........
Timber Pile.
---------------------------------------------------------------------------------------------------------------
Total............................... ........... ......... ......... ............................... ......... 1 ......... 1
--------------------------------------------------------------------------------------------------------------------------------------------------------

The estimated take by Level A and Level B harassment for all
authorized species and stocks by year, and percentage take by stock is
shown in Table 13.

Table 13--Estimated Take by Level A and Level B Harassment, by Species, Stock and Year, and Percentage Take by Stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
IHA Year 1 Total take IHA Year 2 Total take
---------------------- as ---------------------- as
Common name Stock Abundance Take A Take B percentage Take A Take B percentage
request request of stock request request of stock
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minke Whale.............................. California/Oregon/Washington 915 ......... 6 0.66 ......... 1 0.11
Common Bottlenose Dolphin................ California/Oregon/Washington 3,477 ......... 33 0.95 ......... 3 0.09
offshore.
Long-beaked Common Dolphin............... California.................. 83,379 ......... 110 0.13 ......... 20 0.01
Harbor Porpoise.......................... Washington Inland Waters.... 11,233 ......... 12 0.11 ......... 8 0.07
Harbor Seal.............................. Washington Northern Inland 1,088 20 309 32.6 ......... 57 5.2
Waters.
California Sea Lion...................... United States............... 257,606 ......... 108 0.04 ......... 20 <0.01
Stellar Sea Lion......................... Eastern U.S................. 43,201 ......... 5 0.01 ......... 1 <0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------

Mitigation

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

[[Page 22515]]

and areas of similar significance, and on the availability of the
species or stock for taking for certain subsistence uses (latter not
applicable for this action). NMFS regulations require applicants for
incidental take authorizations to include information about the
availability and feasibility (economic and technological) of equipment,
methods, and manner of conducting the activity or other means of
effecting the least practicable adverse impact upon the affected
species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
In addition to the measures described later in this section, BNSF
will employ the following mitigation measures:
<bullet> BNSF must ensure that construction supervisors and crews,
the monitoring team, and relevant BNSF staff are trained prior to the
start of activities subject to these IHAs, so that responsibilities,
communication procedures, monitoring protocols, and operational
procedures are clearly understood. New personnel joining during the
project must be trained prior to commencing work;
<bullet> Monitoring must take place from 30 minutes prior to
initiation of pile driving activity (i.e., pre-start clearance
monitoring) through 30 minutes post-completion of pile driving
activity;
<bullet> If a marine mammal is observed entering or within the
shutdown zones indicated in Table 14, pile driving activity must be
delayed or halted;
<bullet> Pile driving activity must be halted upon observation of
either a species for which incidental take is not authorized or a
species for which incidental take has been authorized but the
authorized number of takes has been met, entering or within the
harassment zone (as shown in Table 14); and
<bullet> BNSF, construction supervisors and crews, Protected
Species Observers (PSOs), and relevant BNSF staff must avoid direct
physical interaction with marine mammals during construction activity.
If a marine mammal comes within 10 meters of such activity, operations
must cease and vessels must reduce speed to the minimum level required
to maintain steerage and safe working conditions, as necessary to avoid
direct physical interaction.
The following mitigation measures apply to BNSF's in-water
construction activities:
<bullet> Establishment of Shutdown Zones--BNSF will establish
shutdown zones for all pile driving and removal activities. The purpose
of a shutdown zone is generally to define an area within which shutdown
of the activity would occur upon sighting of a marine mammal (or in
anticipation of an animal entering the defined area). Shutdown zones
will vary based on the activity type and marine mammal hearing group.
In addition to the shutdown zones listed in Table 14, BNSF will shut
down construction activity if a humpback or southern resident killer
whale is observed approaching or within the specified Level B
harassment zone.
<bullet> Protected Species Observers--The placement of PSOs during
all pile driving and removal activities (described in detail in the
Monitoring and Reporting section) will ensure that the entire shutdown
zone is visible during pile driving and removal. Should environmental
conditions deteriorate such that marine mammals within the entire
shutdown zone would not be visible (e.g., fog, heavy rain), drilling,
cutting, clipping, pile driving and removal must be delayed until the
PSO is confident marine mammals within the shutdown zone could be
detected.

Table 14--Shutdown Zones for Each Hearing Group and Level B Harassment Zones During Pile Installation and
Removal
[meters]
----------------------------------------------------------------------------------------------------------------
Level B
Pile type, size, and pile driving LF MF HF Phocid Otariid harassment
method zone
----------------------------------------------------------------------------------------------------------------
Scenario 1. Single 36-inch Pipe... 1,000 40 1,200 10 10 500
Scenario 2. 2 Concurrent 36-inch 1,600 60 1,900 10 10 500
Pipe.............................
14-inch H-Pile.................... 10 10 10 10 10 1,000
12-inch Timber Vibratory.......... 10 10 10 10 10 1,400
48-inch Drilled Shaft Oscillatory 10 10 10 10 10 400
Installation.....................
48-inch Concrete-lined Steel Shaft 10 10 10 10 10 5,900
Diamond Wire Saw Removal.........
12-inch Timber Pile Clipper....... 10 10 10 10 10 1,900
----------------------------------------------------------------------------------------------------------------

<bullet> Monitoring for Level A and Level B Harassment--BNSF will
monitor the Level B harassment zones to the extent practicable and the
entire Level A harassment zones. Monitoring zones provide utility for
observing by establishing monitoring protocols for areas adjacent to
the shutdown zones. Monitoring zones enable observers to be aware of
and communicate the presence of marine mammals in the project area
outside the shutdown zone and thus prepare for a potential cessation of
activity should the animal enter the shutdown zone. At least three PSOs
would monitor harassment zones during all in-water construction
activities. PSO monitoring stations are described below in the
Monitoring and Reporting section.
<bullet> Pre-activity Monitoring--Prior to the start of daily in-
water construction activity, or whenever a break in drilling, clipping,
cutting, pile driving/removal

[[Page 22516]]

of 30 minutes or longer occurs, PSOs will observe the shutdown and
monitoring zones for a period of 30 minutes. The shutdown zone will be
considered cleared when a marine mammal has not been observed within
the zone for that 30-minute period. If a marine mammal is observed
within the shutdown zone, a soft-start cannot proceed until the animal
has left the zone or has not been observed for 15 minutes. When a
marine mammal for which Level B harassment take is authorized is
present in the Level B harassment zone, activities may begin and Level
B harassment take will be recorded. If the entire Level B harassment
zone is not visible at the start of construction, pile driving
activities can begin. If work ceases for more than 30 minutes, the pre-
activity monitoring of the shutdown zones will commence.
<bullet> Soft Start--Soft-start procedures are believed to provide
additional protection to marine mammals by providing warning and/or
giving marine mammals a chance to leave the area prior to the hammer
operating at full capacity. For impact pile driving, contractors will
be required to provide an initial set of three strikes from the hammer
at reduced energy, followed by a 30-second waiting period. This
procedure will be conducted three times before impact pile driving
begins. Soft start will be implemented at the start of each day's
impact pile driving and at any time following cessation of impact pile
driving for a period of 30 minutes or longer.
<bullet> Bubble Curtain--BNSF will use a marine pile-driving energy
attenuator (i.e., air bubble curtain system) during impact pile
driving. The use of sound attenuation will reduce SPLs and the size of
the zones of influence for Level A harassment and Level B harassment.
Bubble curtains will meet the following requirements:
[cir] The bubble curtain must distribute air bubbles around 100
percent of the piling circumference for the full depth of the water
column;
[cir] The lowest bubble ring must be in contact with the substrate
for the full circumference of the ring, and the weights attached to the
bottom ring shall ensure 100 percent substrate contact. No parts of the
ring or other objects shall prevent full substrate contact; and
[cir] Air flow to the bubblers must be balanced around the
circumference of the pile.
Based on our evaluation of BNSF's planned measures, NMFS has
determined that the required mitigation measures provide the means
effecting the least practicable impact on the affected species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.

Monitoring and Reporting

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

Visual Monitoring

Marine mammal monitoring must be conducted in accordance with the
Marine Mammal Monitoring Plan found in Appendix E in the application.
Marine mammal monitoring during drilling, clipping, cutting, pile
driving and removal must be conducted by NMFS-approved PSOs in a manner
consistent with the following:
<bullet> Independent PSOs (i.e., not construction personnel) who
have no other assigned tasks during monitoring periods must be used;
<bullet> At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization;
<bullet> Other PSOs may substitute other relevant experience,
education (degree in biological science or related field), or training
for prior experience performing the duties of a PSO during construction
activity pursuant to a NMFS-issued incidental take authorization; and
<bullet> PSOs must be approved by NMFS prior to beginning any
activity subject to this IHA.
PSOs must have the following additional qualifications:
<bullet> Ability to conduct field observations and collect data
according to assigned protocols;
<bullet> Experience or training in the field identification of
marine mammals, including the identification of behaviors;
<bullet> Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
<bullet> Writing skills sufficient to prepare a report of
observations including but not limited to the number and species of
marine mammals observed; dates and times when in-water construction
activities were conducted; dates, times, and reason for implementation
of mitigation (or why mitigation was not implemented when required);
and marine mammal behavior; and
<bullet> Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary;
A minimum of three PSOs located at positions designated in Figure 1
and Figure 2 of the Marine Mammal Monitoring Plan found in Appendix E
of the Application must monitor harassment zones during all in-water
construction activities. One PSO would be stationed in close proximity
to the construction site. A second PSO would be stationed at Bay
Terrace Road which is located east of the Bridge 6.3 on the

[[Page 22517]]

southern side of the Ship Canal. This location would provide views of
ensonified areas radiating into Shilshole Bay as well as waters east of
the mouth of the Ship Canal. A third PSO would be located on the north
side of the Ship Canal at the Northwest 60th Street Viewpoint west of
Bridge 6.3. This location provides views westward towards the mouth of
the Ship Canal. A fourth PSO must be on a boat positioned in Puget
Sound when a wire saw is being utilized to monitor the extended Level B
harassment zone associated with this equipment. A wire saw would be
employed on approximately 6 in-water work days. If hydroacoustic
monitoring results of diamond wire saw cutting activities show that the
entirety of the Level B harassment zone may be viewed by from land-
based PSOs, then the PSO on the boat may not be deployed. All results
from hydroacoustic monitoring, described in the next section, must be
submitted to NMFS. NMFS must approve the removal of the boat-based PSO
and modification of the new harassment isopleth.
Monitoring will be conducted 30 minutes before, during, and 30
minutes after drilling, clipping, cutting, pile driving/removal
activities. In addition, observers shall record all incidents of marine
mammal occurrence, regardless of distance from activity, and shall
document any behavioral reactions in concert with distance from piles
being driven or removed. Drilling, clipping, cutting, Pile driving
activities include the time to install or remove a single pile or
series of piles, as long as the time elapsed between uses of the
drilling, clipping, cutting, pile driving equipment is no more than 30
minutes.

Hydroacoustic Monitoring

Hydroacoustic monitoring will be conducted during in-water pile-
driving and wire saw activities and recorded source levels will be
compared to the reported sound levels employed as part of this
application to determine harassment isopleths modeled in this
application. Information about methods, data collection, and reporting
are described in the Acoustic Monitoring Plan in Appendix F of the
Application. The following representative subsets will be measured:
<bullet> A minimum of 15, 36-inch impact driven piles for the
Project in the following subsets:
1. A minimum of 5 piles towards the beginning of pile driving
activity;
2. A minimum of 5 piles towards the middle of pile driving
activity;
3. A minimum of 5 piles towards the latter pile driving activity.
<bullet> A minimum of 4, 48-inch drilled shafts oscillated for the
Project in the following subsets:
1. A minimum of 2 drilled shafts towards the beginning of the
activity;
2. A minimum of 2 drilled shafts towards the end of the activity.
<bullet> A minimum of 2 48-inch drilled shafts will be monitored
when cut with a wire saw.

Reporting

BNSF must submit its draft reports on all monitoring conducted
under the IHAs within 90 calendar days of the completion of monitoring
or 60 calendar days prior to the requested issuance of any subsequent
IHA for construction activity at the same location, whichever comes
first. A final report must be prepared and submitted within 30 calendar
days following receipt of any NMFS comments on the draft report. If no
comments are received from NMFS within 30 calendar days of receipt of
the draft report, the report shall be considered. The report will
include an overall description of work completed, a narrative regarding
marine mammal sightings, and associated PSO data sheets. Specifically,
the report must include:
<bullet> Dates and times (begin and end) of all marine mammal
monitoring;
<bullet> Construction activities occurring during each daily
observation period, including how many and what type of piles were
driven or removed and by what method: Drilling, cutting, clipping,
impact driving, and vibratory driving and removal ; duration of driving
time for each pile (vibratory) and number of strikes per pile (impact
driving);
<bullet> PSO locations during marine mammal monitoring;
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance;
<bullet> Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting;
<bullet> Time of sighting;
<bullet> Identification of the animal(s) (e.g., genus/species,
lowest possible taxonomic level, or unidentified), PSO confidence in
identification, and the composition of the group if there is a mix of
species;
<bullet> Distance and location of each observed marine mammal
relative to the pile being driven for each sighting;
<bullet> Estimated number of animals (min/max/best estimate);
<bullet> Estimated number of animals by cohort (adults, juveniles,
neonates, group composition, etc.);
<bullet> Animal's closest point of approach and estimated time
spent within the harassment zone;
<bullet> Description of any marine mammal behavioral observations
(e.g., observed behaviors such as feeding or traveling), including an
assessment of behavioral responses thought to have resulted from the
activity (e.g., no response or changes in behavioral state such as
ceasing feeding, changing direction, flushing, or breaching);
<bullet> Number of marine mammals detected within the harassment
zones, by species; and
<bullet> Detailed information about implementation of any
mitigation (e.g., shutdowns and delays), a description of specific
actions that ensued, and resulting changes in behavior of the
animal(s), if any.
The acoustic monitoring report must contain the informational
elements described in the Acoustic Monitoring Plan and, at minimum,
must include:
<bullet> Hydrophone equipment and methods: recording device,
sampling rate, distance (m) from the pile where recordings were made;
depth of water and recording device(s);
<bullet> Type and size of pile being driven or cut, substrate type,
method of driving or cutting during recordings (e.g., hammer model and
energy), and total pile driving or cutting duration;
<bullet> Whether a sound attenuation device is used and, if so, a
detailed description of the device used and the duration of its use per
pile;
<bullet> For impact pile driving (per pile): Number of strikes;
depth of substrate to penetrate; pulse duration and mean, median, and
maximum sound levels (dB re: 1 [micro]Pa): Root mean square sound
pressure level (SPLrms); cumulative sound exposure level (SELcum), peak
sound pressure level (SPLpeak), and single-strike sound exposure level
(SELs-s);
<bullet> For wire saw cutting (per pile): Duration of driving per
pile; mean, median, and maximum sound levels (dB re: 1 [micro]Pa): Root
mean square sound pressure level (SPLrms), cumulative sound exposure
level (SELcum) (and timeframe over which the sound is averaged); and
<bullet> One-third octave band spectrum and power spectral density
plot.
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the IHA-holder shall report
the incident to the Office of Protected Resources (OPR) (301-427-8401),
NMFS and to the West Coast Region Stranding Hotline (866-

[[Page 22518]]

767-6114) as soon as feasible. If the death or injury was clearly
caused by the specified activity, the IHA-holder must immediately cease
the specified activities until NMFS is able to review the circumstances
of the incident and determine what, if any, additional measures are
appropriate to ensure compliance with the terms of the IHA. The IHA-
holder must not resume their activities until notified by NMFS.
The report must include the following information:
i. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
ii. Species identification (if known) or description of the
animal(s) involved;
iii. Condition of the animal(s) (including carcass condition if the
animal is dead);
iv. Observed behaviors of the animal(s), if alive;
v. If available, photographs or video footage of the animal(s); and
vi. General circumstances under which the animal was discovered.

Negligible Impact Analysis and Determination

NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS's implementing
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, or
ambient noise levels).
To avoid repetition, this introductory discussion of our analyses
applies to all of the species listed in Table 13, given that many of
the anticipated effects of this project on different marine mammal
stocks are expected to be relatively similar in nature. Where there are
meaningful differences between species or stocks in anticipated
individual responses to activities, impact of expected take on the
population due to differences in population status, or impacts on
habitat, they are described independently in the analysis below, such
as for the potential repeated and prolonged exposure of habituated
harbor seals that feed on salmonids traversing through the lock system.
The analysis below applies to both the Year 1 and Year 2 authorized
IHAs, except where noted otherwise.
Drilling, clipping, cutting, Pile driving and removal activities
associated with the project, as outlined previously, have the potential
to disturb or displace marine mammals. Specifically, the specified
activities may result in take, in the form of Level A harassment and
Level B harassment from underwater sounds generated by drilling,
clipping, cutting, pile driving and removal. Potential takes could
occur if marine mammals are present in zones ensonified above the
thresholds for Level A or Level B harassment, identified above, while
activities are underway.
The nature of the drilling, clipping, cutting, pile driving project
precludes the likelihood of serious injury or mortality. The mitigation
is expected to ensure that no Level A harassment occurs to any species
except harbor seal. The nature of the estimated takes anticipated to
occur are similar among all species and similar in Year 1 and Year 2,
other than the potential Level A harassment take of harbor seal in Year
1, described further below and the likely comparatively higher number
of repeated takes of some small number of harbor seals by Level B
harassment during both Year 1 and Year 2.
For all species other than harbor seal, take would be limited to
Level B harassment (behavioral disturbance and TTS) only. Effects on
individuals that are taken by Level B harassment, on the basis of
reports in the literature as well as monitoring from other similar
activities, will likely include reactions such as increased swimming
speeds, increased surfacing time, or decreased foraging (if such
activity were occurring). Marine mammals present in the vicinity of the
action area and taken by Level B harassment are most likely to move
away from and avoid the area of elevated noise levels during in-water
construction activities. The project site itself is located along a
highly developed waterfront with high amounts of vessel traffic and,
therefore, we expect that most animals disturbed by project sound would
simply avoid the area and use more-preferred habitats. These short-term
behavioral effects are not expected to affect marine mammals' fitness,
survival, and reproduction due to the limited geographic area that
would be affected in comparison to the much larger habitat for marine
mammals in the Puget Sound. Harbor seals that are habituated to in-
water construction noise could be exposed for 5.4 hours per day for up
to 10 consecutive days during impact driving activities in Year 1 only.
These animals would likely remain in close proximity to the locks and
may be exposed to enough accumulated energy to result in TTS or PTS
(described below). Longer duration exposure could result in TTS in some
cases if exposures occur within the Level B TTS zone. As discussed
earlier in this document, TTS is a temporary loss of hearing
sensitivity when exposed to loud sound, and the hearing threshold is
expected to recover completely within minutes to hours. Any behavioral
effects of repeated or long duration exposures are not expected to
negatively impact survival or reproductive success of any individuals.
Similarly, given that the exposure to these individuals is not expected
to exceed 10 consecutive days for 5.4 or fewer hours at a time for any
individual, any limited energetic impacts from the interruption of
foraging or other important behaviors are not expected to affect the
reproductive success of any individual harbor seals.
In addition to the expected effects resulting from authorized Level
B harassment, we anticipate that a limited number of habituated harbor
seals (20) may sustain some Level A harassment in the form of auditory
injury during 10 days of impact driving planned for Year 1 only.
However, any animals that experience PTS would likely only receive
slight PTS, i.e. minor degradation of hearing capabilities within
regions of hearing that align most completely with the frequency range
of the energy produced by pile driving (i.e., the low-frequency region
below 2kHz), not severe hearing impairment or impairment in the reigns
of greatest hearing sensitivity. If hearing impairment does occur, it
is most likely that the affected animal would lose a

[[Page 22519]]

few dBs in its hearing sensitivity, which in most cases, is not likely
to meaningfully affect its ability to forage and communicate with
conspecifics. These takes by Level A harassment (i.e., a small degree
of PTS) of habituated harbor seals are not expected to accrue in a
manner that would affect the reproductive success or survival of any
individuals, much less result in adverse impacts on the species or
stock. As described above, we expect that marine mammals would be
likely to move away from a sound source that represents an aversive
stimulus, especially at levels that would be expected to result in PTS,
given sufficient notice through use of soft start.
The project is also not expected to have significant adverse
effects on affected marine mammals' habitats. The project activities
will not modify existing marine mammal habitat for a significant amount
of time. 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.
Portions of the southern resident killer whale range are within the
project area and the entire Puget Sound is designated as critical
habitat for these whales under the ESA. However, BNSF would be required
to shut down and suspend pile driving or pile removal activities when
this stock is detected in the vicinity of the project area. We
anticipate that take of southern resident killer whale would be
avoided. There are no other known important areas for other marine
mammals, such as feeding or pupping, areas.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect the species or stock through
effects on annual rates of recruitment or survival:
<bullet> No mortality or serious injury is anticipated or
authorized.
<bullet> For all species except harbor seal and only during Year 1,
no Level A harassment is anticipated or authorized.
<bullet> The Level A harassment exposures to habituated harbor
seals in Year 1 only are anticipated to result in slight PTS, within
the lower frequencies associated with impact pile driving.
<bullet> Though a small number of habituated harbor seals will
accrue Level B harassment in the form of TTS from repeated days of
exposure, hearing thresholds are expected to completely recover within
minutes to hours.
<bullet> Anticipated effects of Level B harassment in the form of
behavioral modification would be temporary.
<bullet> Although a small portion of the southern resident killer
whale critical habitat is within the project area, strict mitigation
measures such as implementing shutdown measures and suspending pile
driving are expected to avoid take of this stock. No other important
habitat for marine mammals exist in the vicinity of the project area.
<bullet> We do not expect significant or long-term negative effects
to marine mammal habitat.
Year 1 IHA--Based on the analysis contained herein of the likely
effects of the specified activity on marine mammals and their habitat,
and taking into consideration the implementation of the required
monitoring and mitigation measures, NMFS finds that the total marine
mammal take from BNSF's construction activities will have a negligible
impact on all affected marine mammal species or stocks.
Year 2 IHA--Based on the analysis contained herein of the likely
effects of the specified activity on marine mammals and their habitat,
and taking into consideration the implementation of the required
monitoring and mitigation measures, NMFS finds that the total marine
mammal take from BNSF's construction activities will have a negligible
impact on all affected marine mammal species or stocks.

Small Numbers

As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
The amount of take NMFS has authorized is below one third of the
estimated stock abundance for all species during both Year 1 and Year
2. The authorized take of individuals during Year 1 is less than 32.6
percent for harbor seals and less than 1 percent for all other
authorized species. During year 2 the authorized take of individuals is
less than 5.2 percent of the abundance of the affected species or stock
as shown in Table 13. Note that harbor seal take during Year 1 likely
includes multiple repeated takes of some small group of individuals.
Similarly, for all other authorized species, the authorized take
numbers probably represent conservative estimates because they assume
all takes are of different individual animals, which is unlikely to be
the case. Some individuals may return multiple times in a day, but PSOs
would count them as separate takes if they cannot be individually
identified.
Year 1 IHA--Based on the analysis contained herein of the activity
(including the mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
will be taken relative to the population size of the affected species
or stocks in Year 1 of the project.
Year 2 IHA--Based on the analysis contained herein of the activity
(including the mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
will be taken relative to the population size of the affected species
or stocks in Year 2 of the project.

Unmitigable Adverse Impact Analysis and Determination

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

Endangered Species Act

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

[[Page 22520]]

result from this activity. Therefore, NMFS has determined that formal
consultation under section 7 of the ESA is not required for this
action.

National Environmental Policy Act

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

Authorizations

As a result of these determinations, NMFS has issued two distinct
and consecutive one-year IHAs to BNSF for construction associated with
the Railway Bridge 0050-0006.3 Heavy Maintenance Project in King
County, Washington from July 16, 2022 to July 15, 2023 (Year 1) and
from July 16, 2023 to July 15, 2024 (Year 2) provided the previously
mentioned mitigation, monitoring, and reporting requirements are
incorporated.

Dated: April 12, 2022.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2022-08135 Filed 4-14-22; 8:45 am]
BILLING CODE 3510-22-P

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