Notice2022-11280
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Pier 58 Reconstruction and Pier 63 Removal Projects in Seattle, Washington
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 26, 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 IHAs to the City of Seattle (City) to incidentally harass marine mammals during in-water construction activities associated with the Pier 58 Reconstruction Project and Pier 63 Removal Project in Seattle, Washington.
Full Text
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<title>Federal Register, Volume 87 Issue 102 (Thursday, May 26, 2022)</title>
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[Federal Register Volume 87, Number 102 (Thursday, May 26, 2022)]
[Notices]
[Pages 31985-32001]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-11280]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB985]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Pier 58 Reconstruction and Pier 63
Removal Projects in Seattle, Washington
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of incidental harassment authorizations
(IHAs).
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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 IHAs to the City of Seattle (City) to
incidentally harass marine mammals during in-water construction
activities associated with the Pier 58 Reconstruction Project and Pier
63 Removal Project in Seattle, Washington.
DATES: Both IHAs are valid from August 1, 2022 through July 31, 2023.
FOR FURTHER INFORMATION CONTACT: Amy Fowler, 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/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>. In case of problems
accessing these documents, please call the contact listed above.
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 IHA 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. The definitions
of all applicable MMPA statutory terms cited above are included in the
relevant sections below.
Summary of Request
On July 21, 2021, NMFS received two requests from the City for an
IHA to take marine mammals incidental to the Pier 63 Removal Project
and, separately, the Pier 58 Reconstruction Project on the waterfront
in downtown Seattle,
[[Page 31986]]
Washington. The City submitted revised applications for each project on
September 29, 2021 and January 3, 2022. Both applications were deemed
adequate and complete on January 26, 2022. The City's request is for
take of a small number of 11 species of marine mammals, by Level B
harassment only for the Pier 63 Removal Project, and by Level A
harassment and Level B harassment for the Pier 58 Reconstruction
Project. Neither the City nor NMFS expects serious injury or mortality
to result from these activities and, therefore, IHAs are appropriate.
Description of Planned Activity
Overview
The City submitted an individual IHA application for each project.
However, given the City applied for both projects concurrently, the
projects' close proximity to each other, and similarities in the
planned activities and potential impacts on marine mammals, NMFS is
using this single Federal Register notice to announce the issuance of
the two similar, but separate, IHAs.
The City plans to reconstruct Waterfront Park along the Elliott Bay
shoreline in Seattle, Washington. When replaced, Waterfront Park will
be renamed Pier 58 in reference to the original structure and to avoid
confusion with the larger waterfront park promenade that will be
reconstructed along Alaskan Way. The project includes vibratory removal
of existing in-water piles and vibratory and impact installation of new
piles to support the expanded overwater structure (Table 1). A total of
31 existing steel H-piles and timber piles will be removed in whole,
wherever possible, by pulling the piles using a vibratory extraction
method or clamshell bucket. Once all existing piles have been removed,
the City will begin the reconstruction by using a vibratory hammer to
install 100 24-inch steel pipe template piles, which will all
subsequently be removed using the same vibratory hammer. The City will
then install a total of 120 permanent 30-inch steel pipe piles using a
vibratory hammer, followed by an impact hammer to ``proof'' the pilings
to their maximum depth and load-bearing capacity. The City does not
plan to conduct pile driving with multiple hammers concurrently.
Funding for this project has been secured and the City expects Pier 58
reconstruction (including above-water construction that does not have
the potential to take marine mammals) to take a little over a year to
complete, from August 2022 to December 2023, with a total of 70 days of
in-water work expected during the designated window.
Table 1--Summary of Piles To Be Installed and Removed at Pier 58
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Maximum days
Pile type and size Method Number of Maximum piles Duration or strikes per of pile
piles per day pile driving
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Steel H-pile, 14-inch timber pile..... Vibratory removal.................... 31 20 20 minutes............... 10
24-inch steel pipe pile............... Vibratory installation............... \a\ 100 10 15 minutes............... 10
24-inch steel pipe pile............... Vibratory removal.................... \a\ 100 10 5 minutes................ 10
30-inch steel pipe pile............... Vibratory installation............... \b\ 120 4 45 minutes............... \c\ 40
30-inch steel pipe pile............... Impact installation.................. \c\ 120 3 400 strikes.............. \a\ 40
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Total............................. Vibratory and impact................. 251 .............. ......................... 70
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\a\ These same 100 piles will be installed and later removed.
\b\ These same 120 piles will be installed first using a vibratory hammer, than finished with an impact hammer.
\c\ Vibratory and impact installation of 30-inch piles will occur on the same 40 days.
The City also plans to remove Pier 63 from the downtown Seattle
waterfront. The structural integrity of the pier has deteriorated and
the pier has been closed to the public for safety. Removing Pier 63
will leave the nearshore environment open for improved ecosystem
function and salmonid migration. The project includes vibratory removal
of existing in-water piles; no plans have been made to reconstruct Pier
63, therefore no new piles will be installed (Table 1). The City plans
to demolish and remove the existing pier (with a total over-water area
of 35,108 square feet), including removal of 900 14-inch timber piles
and 8 30-inch steel pipe piles. Pier 63 will be removed during one in-
water work season, with a total of 47 days of in-water work expected.
If funding for Pier 63 removal is not authorized to allow the planned
work to occur during the effective dates of the IHA (August 1, 2022
through July 31, 2023), the City will request the IHA be reissued for
the following year, as discussed in the Federal Register notice of the
proposed IHAs (87 FR 12089; March 3, 2022). Due to this possibility,
the analysis that follows for the Pier 63 Removal Project considers
possible effects on marine mammals during either the August 2022
through July 2023 period or the August 2023 through July 2024 period,
based on the current best available science.
Table 2--Summary of Piles To Be Removed at Pier 63
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Maximum piles Duration per Maximum days
Pile type Number of removed per pile of pile
piles day (minutes) removal
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14-inch timber pile............................. 900 20 20 45
30-inch steel pipe pile......................... 8 4 45 2
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A detailed description of the planned activities is provided in the
Federal Register notice of the proposed IHAs (87 FR 12089; March 3,
2022). Since that time, no changes have been made to the planned
activities. Therefore, a detailed description is not provided here.
Please refer to that Federal Register notice for descriptions of the
specific activities. Mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Mitigation and
Monitoring and Reporting sections).
[[Page 31987]]
Comments and Responses
A notice of NMFS's proposal to issue two IHAs to the City was
published in the Federal Register on March 3, 2022 (87 FR 12089). That
notice described, in detail, the City's activities, the marine mammal
species that may be affected by the activities, and the anticipated
effects on marine mammals. In that notice, we requested public input on
the request for authorization described therein, our analyses, the
proposed authorization, and any other aspect of the notice of proposed
IHA, and requested that interested persons submit relevant information,
suggestions, and comments. This proposed notice was available for a 30-
day public comment period. During the public comment period, NMFS
received no public comments.
Changes From the Proposed IHA to Final IHA
On March 28, 2022, after NMFS published the notice of proposed
IHAs, the City submitted a letter to NMFS, withdrawing their request
for take of Southern Resident killer whales (SRKW; Orcinus orca) and
humpback whales (Megaptera novaeangliae). The City explained that it
had initially included the request for incidental take coverage of SRKW
in their IHA applications as a conservative approach, but had since
reconsidered the expected effectiveness of proposed mitigation and
monitoring measures. The City reviewed monitoring results from past
projects along the Seattle Waterfront and the sightings reports of SRKW
and humpback whales compiled by Orca Network. The City also proposed to
increase its mitigation efforts to ensure that any SRKW or humpback
whales in the general area of the projects would be immediately
detected. In addition, the proposed mitigation measure to implement
shutdown measures for SRKW has been expanded to apply also to humpback
whales, such that if any humpback whale is sighted within the vicinity
of the project areas and is approaching the Level B harassment zone,
the City would shut down the pile driving equipment to avoid possible
take. With this new information and additional mitigation, in
conjunction with the previously proposed mitigation and monitoring, the
City determined, and NMFS concurs, that incidental take of these two
stocks is unlikely to occur.
Monitoring results from recent similar in-water construction
projects with similar Level B harassment zones, such as the City's Pier
62 Restoration Project (Anchor QEA 2019) indicate that protected
species observers (PSOs) were able to detect SRKW and humpback whales
outside the Level B harassment zone. In the City's Pier 62 Restoration
IHA (83 FR 39709; August 10, 2018), SRKW and humpback whales were first
observed when outside of the Level B harassment zone. But because
incidental take was authorized, the pile driving equipment was not
required to be shut down when these species were detected. If shutdown
for the Level B harassment zone had been included in that IHA, the City
would have been able to cease pile driving and avoid all take of SRKW
and humpback whales. Similarly, IHAs issued to the Washington State
Department of Transportation (WSDOT) for in-water pile driving
activities at the Seattle Ferry Terminal (Pier 52) since 2017 have
authorized incidental take of humpback whales, but have included the
requirement to shut down pile driving equipment prior to SRKW entering
the Level B harassment zone (e.g., 86 FR 38686; July 22, 2021). Over
the course of 5 in-water work seasons, WSDOT has recorded observations
of SRKW in the project area but has successfully implemented the
required mitigation measure and reported no take of SRKW (WSDOT 2022).
PSOs for the Pier 58 Reconstruction and Pier 63 Removal projects
will be stationed with views that extend beyond the Level B harassment
zone, providing an opportunity for PSOs to detect SRKW and humpback
whales outside of the Level B harassment zone and notify the contractor
to cease pile driving activities before Level B harassment occurs. PSOs
will also notify the contractor to delay the start of pile driving if
these species are present. During emergency in-water demolition work at
Waterfront Park between October 2020 and February 2021, PSOs were
stationed at the same locations as those designated for the Pier 58
Reconstruction and Pier 63 Removal projects. The PSOs observed SRKW
outside the Level B harassment zone (equivalent to the largest Level B
harassment zone for the two Pier 58 and Pier 63 IHAs; see Estimated
Take section) and were able to coordinate with the contractor to halt
pile driving in advance of SRKW entering the harassment zone (Anchor
QEA, 2021). Observations of that same group of SRKW were also reported
by Orca Network as the pod traveled through Puget Sound.
Contacting, it is most likely that any occurrence of SRKW or
humpback whales in Central Puget Sound will be reported to and
distributed by Orca Network, and these reports will then be obtained by
the PSOs employed for both projects (see below for the required
frequency of PSOs obtaining reports from Orca Network) before the
animals are within the Level B harassment zones for the Pier 58 and
Pier 63 projects.
To obtain more real-time sightings reports of SRKW and humpback
whales to even further increase the likelihood that both species will
be detected before they enter the Level B harassment zone, the City
proposed increasing the frequency that PSOs will contact Orca Network
from what was included in the proposed IHAs (87 FR 12089; March 3,
2022). The proposed IHAs included requirements for PSOs to contact Orca
Network to obtain sightings reports of marine mammals in central Puget
Sound twice each day, once prior to the start of in-water work for the
day, and again at the approximate mid-point of construction each day.
The City amended this process such that PSOs will now contact Orca
Network hourly, which will increase the likelihood that PSOs will be
aware of reported sightings of SRKW and humpback whales in central
Puget Sound, and be able to detect these species outside the Level B
harassment zone and initiate equipment shutdowns to prevent take from
occurring.
NMFS has reviewed the new information, in addition to considering
the effect of the updated mitigation measures of requiring shutdown if
humpback whales are sighted within the vicinity of the project areas
and approaching the Level B harassment zone as well as requiring PSOs
to contact Orca Network hourly for the most recent location information
of SRKW and humpback whales. Although NMFS previously accepted that it
was possible for a small number of SRKW to enter the Level B harassment
zone undetected and proposed a small amount of Level B harassment for
both SRKW and humpback whales, NMFS now concurs with the City's
assessment that any take of SRKW and humpback whales is unlikely to
occur, and has incorporated the new mitigation measures into the final
IHAs. Accordingly, the final IHAs do not authorize incidental take of
SRKW or humpback whales.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the City's applications summarize available
information regarding status and trends, distribution and habitat
preferences, and behavior and life history of the potentially affected
species. NMFS fully considered all of this information, and we refer
the reader to these descriptions, incorporated here by reference,
instead of reprinting the information. Additional information regarding
[[Page 31988]]
population trends and threats may be found in NMFS' Stock Assessment
Reports (SARs; <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">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' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 3 lists all species or stocks for which take is expected and
authorized for the City's activities, 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. PBR is defined by the MMPA as the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population (as described in NMFS'
SARs). While no serious injury or mortality is anticipated or
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' 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 values for each managed stock presented in
Table 3 are the most recent available at the time of publication and
are available in the 2020 SARs (Carretta et al., 2021, Muto et al.,
2021) and draft 2021 SARs (available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>).
Table 3--Marine Mammals That Could Occur in the Project Area
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ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/ Nmin, most recent PBR Annual M/
N)\1\ abundance survey) \2\ SI \3\
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Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae:
Gray whale...................... Eschrichtius robustus.. Eastern N Pacific...... -, -, N 26,960 (0.05, 25,849, 801 131
2016).
Family Balaenopteridae (rorquals):
Minke whale..................... Balaenoptera California/Oregon/ -, -, N 915 (0.792, 509, 2018) 4.1 >=0.59
acutorostrata. Washington.
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Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
Long Beaked Common Dolphin...... Delphinus capensis..... California............. -, -, N 83,379 (0.216, 69,636, 668 >=29.7
2018).
Bottlenose Dolphin.............. Tursiops truncatus..... California Coastal..... -, -, N 453 (0.06, 346, 2011). 2.7 >=2.0
Killer Whale.................... Orcinus orca........... West Coast Transient... -, -, N \4\ 349 (N/A, 349, 3.5 0.4
2018).
Family Phocoenidae (porpoises):
Harbor Porpoise................. Phocoena phocoena...... Washington Inland -, -, N 11,233 (0.37, 8,308, 66 >=7.2
Waters. 2015).
Dall's Porpoise................. Phocoenoides dalli..... California/Oregon/ -, -, N 16,498 (0.61, 10,286, 99 >=0.66
Washington. 2019).
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Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
sea lions):
California Sea Lion............. Zalophus californianus. U.S.................... -, -, N 257,606 (N/A,233,515, 14,011 >320
2014).
Steller Sea Lion................ Eumetopias jubatus..... Eastern................ -, -, N \5\ 43,201 (see SAR, 2,592 112
43,201, 2017).
Family Phocidae (earless seals):
Harbor Seal..................... Phoca vitulina......... Washington Northern -, -, N \6\ 11,036 (UNK, UNK, UND 9.8
Inland Waters. 1999).
Northern Elephant Seal.......... Mirounga angustirostris California Breeding.... -, -, N 187,386 (N/A, 85,369, 5,122 13.7
2013).
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\1\ 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.
\2\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ 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.
\4\ Based on counts of individual animals identified from photo-identification catalogues. Surveys for abundance estimates of these stocks are conducted
infrequently.
\5\ Best estimate of pup and non-pup counts, which have not been corrected to account for animals at sea during abundance surveys.
\6\ 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.
As indicated above, all 11 species (with 11 managed stocks) in
Table 3 temporally and spatially co-occur with the activities to the
degree that take is reasonably likely to occur. The Pacific white-sided
dolphin (Lagenorhynchus obliquidens) is a rare visitor to the inland
waters of Puget Sound (Orca Network, 2021). However, they have not been
observed during recent marine mammal monitoring for projects in Elliott
Bay (e.g., WSDOT 2021; Anchor QEA 2019) and are considered unlikely to
occur in the area during the City's planned activities. The City has
not requested take of Pacific white-sided dolphins for either project
and NMFS does not anticipate or authorize take of
[[Page 31989]]
this species. Therefore, Pacific white-sided dolphins are not discussed
further in this document. Additionally, as described above in the
Changes from the Proposed IHA to Final IHA section of this notice, SRKW
and humpback whales also occur in the inland waters of Puget Sound and
take of these species was included in the proposed IHAs (87 FR 12089;
March 3, 2022). However, in consideration of the City's amended request
and the requirements described in the Mitigation and Monitoring and
Reporting sections of this notice, NMFS has determined that take of
these species is unlikely to occur and has not authorized take of SRKW
and humpback whales.
A detailed description of the species likely to be affected by the
City's activities, including information regarding population trends
and threats, and information regarding local occurrence, were provided
in the Federal Register notice for the proposed IHAs (87 FR 12089;
March 3, 2022). Since that time, we are not aware of any changes in
this information or 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.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 4.
Table 4--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
cephalorhynchids, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinnipeds (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from the City's construction
activities have the potential to result in Level A and Level B
harassment of marine mammals in the vicinity of the project area. The
notice of proposed IHAs (87 FR 12089; March 3, 2022) included a
discussion of the effects of anthropogenic noise on marine mammals and
the potential effects of underwater noise from the City's construction
activities on marine mammals and their habitat. That information and
analysis is incorporated by reference into the final determinations for
the IHAs and is not repeated here; please refer to the notice of
proposed IHAs (87 FR 12089; March 3, 2022).
The Estimated Take section includes a quantitative analysis of the
number of individuals that are expected to be taken by this activity.
The Negligible Impact Analysis and Determination section considers the
content of this section, the Estimated Take section, and the Mitigation
section, to draw conclusions regarding the likely impacts of these
activities on the reproductive success or survivorship of individuals
and whether those impacts are reasonably expected to, or reasonably
likely to, adversely affect the species or stock through effects on
annual rates of recruitment or survival.
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 determinations.
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);
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 are primarily by Level B harassment (in the form
of
[[Page 31990]]
behavioral disturbance and temporary threshold shift (TTS)), as use of
the acoustic sources (i.e., vibratory or impact pile driving and
removal) have the potential to result in disruption of behavioral
patterns and cause a temporary loss in hearing sensitivity for
individual marine mammals. There is also some potential for auditory
injury (Level A harassment) to result for porpoises and harbor seals
because predicted auditory injury zones are larger than for other
hearing groups. The required mitigation and monitoring measures are
expected to minimize the severity of the taking to the extent
practicable.
As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
authorized take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) Acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas; and, (4) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the authorized take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur permanent threshold shift (PTS) of some
degree (equated to Level A harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (referenced
to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile-
driving, drilling) and above RMS SPL of 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g.,
scientific sonar) sources. This take estimation includes disruption of
behavioral patterns resulting directly in response to noise exposure
(e.g., avoidance), as well as that resulting indirectly from associated
impacts such as TTS or masking.
The City's planned activities include the use of continuous
(vibratory hammer) and impulsive (impact hammer) sources, and therefore
the 120 and 160 dB re 1 [mu]Pa (rms) thresholds are applicable.
Level A harassment--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). The City's
activities include the use of impulsive (impact hammer) and non-
impulsive (vibratory hammer) sources.
These thresholds are provided in the table 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="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Table 5--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: L,0-pk,flat: 219 Cell 2: LE,, LF,24h: 199 dB.
dB; LE, LF,24h: 1183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: L, 0-pk,flat: 230 Cell 4: LE,, MF,24h: 198 dB.
dB; LE,,MF,24h: 1185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: L, 0-pk,flat: 202 Cell 6: LE,, HF,24h: 173 dB.
dB; LE,,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: L, 0-pk.flat: 218 Cell 8: LE,,PW,24h: 201 dB.
dB; LE,,PW,24h: 1185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: L,0-pk,flat: 232 Cell 10: LE,,OW,24h: 219 dB.
dB; LE,,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric 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 are recommended for consideration.
[[Page 31991]]
Note: Peak sound pressure level (L,0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
exposure level (LE,) has a reference value of 1[micro]Pa \2\s. In this Table, thresholds are abbreviated to be
more reflective of International Organization for Standardization standards (ISO 2017). The subscript ``flat''
is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized
hearing range of marine mammals (i.e., 7 Hz to 160 kHz). 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 weighted
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 thresholds will be exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
The sound field in the project areas is the existing background
noise plus additional construction noise from the planned projects.
Marine mammals are expected to be affected by sound generated by the
primary components of the project (i.e., impact and vibratory pile
driving).
In order to calculate distances to the Level A harassment and Level
B harassment thresholds for the methods and piles being used in this
project, NMFS used acoustic monitoring data from other locations to
develop source levels for the various pile types, sizes, and methods
for the two piers (Tables 6 and 7).
Table 6--Pier 58 Project Sound Source Levels
----------------------------------------------------------------------------------------------------------------
Source level (dB re 1
Pile type and size (in) Method [mu]Pa) Reference
----------------------------------------------------------------------------------------------------------------
14-in timber, steel H-piles.......... Vibratory removal...... 152 dB rms............. Greenbusch Group
(2018).
24-in steel pipe pile................ Vibratory removal and 163 dB rms............. Greenbusch Group
installation. (2019).
30-in steel pipe pile................ Vibratory installation. 163 dB rms............. Greenbusch Group
(2019).
30-in steel pipe pile................ Impact installation.... 180 dB rms \1\, 193 dB Greenbusch Group
peak. (2019).
----------------------------------------------------------------------------------------------------------------
\1\ Highest RMS sound level from bubble curtain attenuated impact driving of 30-in steel piles at Pier 62.
Table 7--Pier 63 Project Sound Source Levels
----------------------------------------------------------------------------------------------------------------
Source level (dB re 1
Pile type and size (in) Method [mu]Pa) Reference
----------------------------------------------------------------------------------------------------------------
14-in timber......................... Vibratory removal...... 152 dB rms............. Greenbusch Group
(2018).
30-in steel pipe pile................ Vibratory removal...... 163 dB rms............. Greenbusch Group
(2019).
----------------------------------------------------------------------------------------------------------------
Level B Harassment Zones
Transmission loss (TL) is the decrease in acoustic intensity as an
acoustic pressure wave propagates out from a source. TL parameters vary
with frequency, temperature, sea conditions, current, source and
receiver depth, water depth, water chemistry, and bottom composition
and topography. The general formula for underwater TL is:
TL = B * Log10 (R1/R2),
Where:
TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement
The recommended TL coefficient for most nearshore environments is
the practical spreading value of 15. This value results in an expected
propagation environment that would lie between spherical and
cylindrical spreading loss conditions, which is the most appropriate
assumption for the City's planned activities in the absence of specific
modelling. The Level B harassment zones for the City's planned
activities are shown in Tables 8 and 9.
Level A Harassment Zones
The ensonified area associated with Level A harassment is more
technically challenging to predict due to the need to account for a
duration component. Therefore, NMFS developed an optional User
Spreadsheet tool to accompany the Technical Guidance that can be used
to relatively simply predict an isopleth distance for use in
conjunction with marine mammal density or occurrence to help predict
potential takes. We note that because of some of the assumptions
included in the methods underlying this optional tool, we anticipate
that the resulting isopleth estimates are typically going to be
overestimates of some degree, which may result in an overestimate of
potential take by Level A harassment. However, this optional tool
offers the best way to estimate isopleth distances when more
sophisticated modeling methods are not available or practical. For
stationary sources such as pile installation and removal, the NMFS User
Spreadsheet predicts the distance at which, if a marine mammal remained
at that distance for the whole duration of the activity, it would incur
PTS. The isopleths generated by the User Spreadsheet used the same TL
coefficient as the Level B harassment zone calculations (i.e., the
practical spreading value of 15). Inputs used in the User Spreadsheet
(e.g., number of piles per day, duration and/or strikes per pile) are
presented in Tables 1 and 2, and the resulting isopleths are reported
below in Tables 8 and 9. The areas expected to be ensonified above the
Level B harassment threshold(s) are also presented in Tables 8 and 9.
Due to the bathymetry and geography of the project areas, sound will
not reach the full distance of the harassment isopleths in all
directions.
[[Page 31992]]
Table 8--Pier 58 Level A Harassment and Level B Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment zone (m) Level B Level B
Pile type ------------------------------------------------------------------- harassment ensonified
LF cetacean MF cetacean HF cetacean Phocids Otariids zone (m) area (km \2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Timber and steel H-pile removal...................... 6.1 0.5 9.0 3.7 0.3 \b\ 1,359 2.35
24-in steel vibratory install and removal, 30-in 19.3 1.7 28.6 11.7 0.8 \b\ 7,357 34.34
steel vibratory install \a\.........................
30-in steel impact install........................... 153.3 5.5 182.6 82.0 6.0 \c\ 215 0.07
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Level A harassment zones for vibratory installation and removal of steel piles calculated using the highest total duration of driving (installation
of 30-inch piles) and conservatively applied to all vibratory pile driving.
\b\ Distance to 120 dB rms threshold.
\c\ Distance to 160 dB rms threshold.
Table 9--Pier 63 Level A Harassment and Level B Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment zone (m) Level B Level B
Pile type ------------------------------------------------------------------- harassment ensonified
LF cetacean MF cetacean HF cetacean Phocids Otariids zone (m) \a\ area (km \2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Timber............................................... 6.1 0.5 9.0 3.7 0.3 1,359 2.35
Steel................................................ 19.3 1.7 28.6 11.7 0.8 7,357 34.34
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Distance to 120 dB rms threshold.
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 that will inform the
authorized take incidental to the City's pile driving activities.
Unless otherwise specified, the term ``pile driving'' in this section,
and all following sections, may refer to either pile installation or
removal.
As described in the Changes from the Proposed IHA to Final IHA
section of this notice, while take of SRKW and humpback whales was
included in the proposed IHAs, the City has reassessed the likelihood
of take of these species in consideration of the effectiveness of the
required mitigation and monitoring measures. The City determined that
by implementing the additional mitigation and monitoring requirements,
take of SRKW and humpback whales is unlikely to occur. NMFS has
carefully considered the new information and additional mitigation
measures, and concurs with the City's assessment. Incidental take of
SRKW and humpback whales is no longer anticipated to occur and has not
been authorized.
To estimate the number of marine mammals that may be taken
incidental to the Pier 58 Reconstruction and Pier 63 Removal projects,
the City considered using the ensonified area (see Tables 8 and 9) and
density estimates from the U.S. Navy's Marine Species Density Database
for the Northwest Training and Testing Study Area (U.S. Navy, 2019) but
did not consider the resulting take estimates to be realistic (i.e.,
they either over- or underestimated take). Instead of using the U.S.
Navy's density estimates, the City therefore compiled monitoring
results from recent construction projects in Elliott Bay (e.g., WSDOT,
2019; Anchor QEA, 2021) to estimate the likely daily or monthly
occurrence of each species in the project areas. Unless otherwise
specified, the occurrence information described below is used to
estimate take for both the Pier 58 and Pier 63 projects. NMFS has
carefully reviewed the City's analysis and concludes that it represents
an appropriate and accurate method for estimating incidental take
caused by the City's activities.
Gray Whale
Gray whales are infrequent visitors to the project areas but are
most commonly seen during the winter months. Although no observations
of gray whales have been reported during recent pile driving projects
along the Seattle waterfront (e.g., WSDOT 2021; Anchor QEA 2019),
individual gray whales have been reported in Elliott Bay by WSDOT ferry
operators in December 2018, January 2019, and November 2019. Therefore,
the City estimates that one gray whale may be taken by Level B
harassment in each winter month (November, December, January, and
February) of the work window. Therefore, the City requested, and NMFS
has authorized, 4 takes of gray whales by Level B harassment from Pier
58 reconstruction. Since Pier 63 removal is expected to take only 3
months total, the City requested, and NMFS has authorized, 3 takes of
gray whales by Level B harassment from Pier 63 removal.
Since the City must comply with all mitigation and monitoring
measures, including marine mammal monitoring and coordination with Orca
Network, these measures will likely be successful in detecting gray
whales given their size and visibility, the City must stop work before
gray whales could enter the small Level A harassment zones (up to 153.3
m), and gray whales are infrequent visitors to the project areas, it is
unlikely that any gray whales will be taken by Level A harassment. No
take of gray whales by Level A harassment is requested or authorized.
Minke Whale
Minke whales are rarely observed in the project areas and none have
been reported during monitoring for recent pile driving activities in
the area (e.g., WSDOT 2021; Anchor QEA 2019). The City estimates that
no more than one minke whale per month may be taken by Level B
harassment. Therefore, the City requested, and NMFS has authorized, 6
takes of minke whales by Level B harassment from Pier 58 reconstruction
and 3 takes by Level B harassment from Pier 63 removal.
Like gray whales, minke whales are considered infrequent visitors
to the project areas. As with gray whales, PSOs must coordinate with
Orca Network and will likely be alerted to the presence of minke whales
in the area, allowing the City to shut down pile driving equipment
before a minke whale could enter the Level A harassment zones. Hence,
in consideration of the expected
[[Page 31993]]
effectiveness of mitigation and infrequent occurrence, no take of minke
whales by Level A harassment is requested or authorized.
Transient Killer Whale
Transient killer whales are frequently seen in central Puget Sound
and occasionally within Elliott Bay (Orca Network 2021). Transient
killer whales typically travel in small groups. The City estimates that
a group of 6 transient killer whales may enter the Level B harassment
zone per month. Therefore, the City has requested, and NMFS has
authorized, take of 36 transient killer whales by Level B harassment
from Pier 58 reconstruction and 18 takes by Level B harassment from
Pier 63 removal.
The Level A harassment zones for mid-frequency cetaceans are all
less than 10 m. PSOs must coordinate with Orca Network and will likely
be alerted to the presence of transient killer whales in the area,
allowing them to detect the animals and the City to cease pile driving
well before killer whales could enter the Level A harassment zone. No
take of transient killer whales by Level A harassment is requested or
authorized.
Bottlenose Dolphin
In 2017 the Orca Network (2017) reported sightings of a bottlenose
dolphin in Puget Sound and in Elliott Bay, and WSDOT observed two
bottlenose dolphins in one week during monitoring for the Colman Dock
Multimodal Project (WSDOT 2018). In addition, a group of 7 bottlenose
dolphins were observed in 2017 and were positively identified as part
of the California coastal stock (Cascadia Research Collective, 2017).
Bottlenose dolphins typically travel in groups of 2 to 15 in coastal
waters (Carretta et al., 2020). The City estimates that 7 bottlenose
dolphins may be taken by Level B harassment per month. Therefore, the
City has requested, and NMFS has authorized, take of 42 bottlenose
dolphins by Level B harassment from Pier 58 reconstruction and 21 takes
by Level B harassment from Pier 63 removal.
The Level A harassment zones for mid-frequency cetaceans are all
less than 10 m. Given the visibility of bottlenose dolphins, the City
will be able to cease pile driving before bottlenose dolphins could
enter the Level A harassment zone. No take of bottlenose dolphins by
Level A harassment is requested or authorized.
Long-Beaked Common Dolphin
In June 2011, two long-beaked common dolphins were sighted in South
Puget Sound. Sightings continued in 2012, and in 2016-17 (Carretta et
al., 2018). Sightings of 4 to 12 individuals were reported regularly,
with confirmed sightings of up to 30 individuals. In 2016, the Orca
Network (2016) reported a pod of up to 20 long-beaked common dolphins.
During monitoring for the Colman Dock Project in 2017-2018, 2 long-
beaked common dolphins were observed in smaller Level B harassment
zones than estimated for pile driving at Piers 58 and 63 (WSDOT, 2018).
The average reported group size of long-beaked common dolphins in Puget
Sound is 7 individuals. Therefore, the City estimates 7 long-beaked
common dolphins may be taken by Level B harassment per month. The City
requested, and NMFS has authorized, take of 42 long-beaked common
dolphins by Level B harassment from Pier 58 reconstruction and 21 takes
by Level B harassment from Pier 63 removal.
The Level A harassment zones for mid-frequency cetaceans are all
less than 10 m. Given the visibility of long-beaked common dolphins,
the City will be able to cease pile driving before long-beaked common
dolphins could enter the Level A harassment zone. No take of long-
beaked common dolphins by Level A harassment is requested or
authorized.
Harbor Porpoise
Recent monitoring data from the Colman Dock Project (Pier 52) in
2017 and 2018 (WSDOT 2019) included observations of 288 harbor
porpoises over 99 days of monitoring activity. This equates to
approximately 3 porpoises per day.
To account for unobserved animals at the outer extent of the Level
B harassment zones, the City estimates up to 6 harbor porpoises may
enter the Level B harassment zone per day of pile driving at Pier 58
(70 days) for a total of 420 harbor porpoises. For impact installation
of steel piles at Pier 58, the Level A harassment zone for high-
frequency cetaceans is 183 m. Although the City must implement a
shutdown zone of 185 m during this activity (see Mitigation section),
due to the cryptic nature and lower detectability of harbor porpoises
at large distances, the City anticipates that up to 12 of the harbor
porpoises (2 per month) that enter the Level B harassment zone could
approach the project site closer and potentially enter the Level A
harassment zone undetected during impact installation at Pier 58, which
could occur as one group in one day or single animals over two days.
These harbor porpoises would be counted as taken by Level A harassment,
but would not count toward the City's authorized number of takes of
harbor porpoises by Level B harassment because they would have already
been counted as Level A harassment takes. The Level A harassment zones
for all vibratory pile driving at Pier 58 are all under 30 m. At that
distance, the PSOs will be able to detect harbor porpoises and alert
the City to cease pile driving activities before harbor porpoises could
enter the Level A harassment zone. Therefore, no take of harbor
porpoises by Level A harassment is anticipated from vibratory pile
driving. In total, the City has requested, and NMFS has authorized,
take of 420 harbor porpoises, 408 takes by Level B harassment and 12
takes by Level A harassment from Pier 58 reconstruction.
On all but two days of work at Pier 63, the Level B harassment zone
will be well within Elliott Bay. Since the extent of the Level B
harassment zone for this project on most days is less than for Pier 58,
the City estimates that up to 5 harbor porpoises may be taken by Level
B harassment per day during 47 days of pile removal at Pier 63.
Therefore, the City requested, and NMFS has authorized, a total of 235
takes of harbor porpoises by Level B harassment from Pier 63 removal.
The largest Level A harassment zone from pile removal at Pier 63 is 29
m. At that close range, the PSOs will be able to detect harbor
porpoises and the City must shut down pile driving activities before
they approach within 29 m. Therefore, no take of harbor porpoises by
Level A harassment from pile driving at Pier 63 is requested or
authorized.
Dall's Porpoise
Dall's porpoises are rarely sighted in the project areas. The City
conservatively estimates that up to 12 Dall's porpoises may enter the
Level B harassment zone per month, for a total of 72 Dall's porpoises
from Pier 58 reconstruction and 36 from Pier 63 removal.
For impact installation of steel piles at Pier 58, the Level A
harassment zone for high-frequency cetaceans is 183 m. Although the
City must implement a shutdown zone of 185 m during this activity, the
City anticipates that up to 12 of the Dall's porpoises (2 per month)
that enter the Level B harassment zone could approach the project site
closer and potentially enter the Level A harassment zone undetected
during impact installation at Pier 58, which could occur as one group
in one day or a single animal over two days. These Dall's porpoises
would be counted as taken by Level A harassment, but would
[[Page 31994]]
not count toward the City's authorized number of takes of Dall's
porpoises by Level B harassment because they would have already been
counted as Level A harassment takes. The Level A harassment zones for
all vibratory pile driving at Pier 58 are all under 30 m. At that
distance, the PSOs will be able to detect Dall's porpoises and alert
the City to cease pile driving activities before Dall's porpoises could
enter the Level A harassment zone. Therefore, no take of Dall's
porpoises by Level A harassment is anticipated from vibratory pile
driving. In total, the City requested, and NMFS has authorized, take of
72 Dall's porpoise, 60 takes by Level B harassment and 12 takes by
Level A harassment from Pier 58 reconstruction.
The largest Level A harassment zone from pile removal at Pier 63 is
29 m. At that close range, the PSOs will be able to detect Dall's
porpoises and the City must shut down pile driving activities before
they approach within 29 m. Therefore, no take of Dall's porpoises by
Level A harassment from pile driving at Pier 63 is requested or
authorized. The City requested, and NMFS has authorized, 36 takes of
Dall's porpoise by Level B harassment only for activities at Pier 63.
California Sea Lion
During monitoring for the Pier 62 Project, a maximum of 31
California sea lions were observed in one day, with an average of 6
takes per day (Anchor QEA 2019). To account for unobserved animals at
the outer extent of the Level B harassment zones, the City estimates up
to 10 California sea lions may be taken by Level B harassment per day.
Therefore, the City requested, and NMFS has authorized, 700 takes of
California sea lions by Level B harassment from Pier 58 reconstruction
and 470 takes by Level B harassment from Pier 63 removal.
The largest Level A harassment zone for otariid pinnipeds is 6 m.
The City must implement a minimum shutdown zone of 10 m for all
activities. At that close range, the PSOs will be able to detect
California sea lions and the City will implement the required shutdown
measures before California sea lions could enter the Level A harassment
zone. Therefore, no takes of California sea lions by Level A harassment
are requested or authorized.
Steller Sea Lion
Recent monitoring data from the Colman Dock Project in 2017 and
2018 (WSDOT 2019) reported observations of 54 Steller sea lions over 99
days of monitoring activity, which is roughly equivalent to one Steller
sea lion every other day. To account for unobserved animals at the
outer extent of the Level B harassment zones, the City estimates two
Steller sea lions may be taken by Level B harassment per day.
Therefore, the City requested, and NMFS has authorized, 140 takes of
Steller sea lions by Level B harassment from Pier 58 reconstruction and
94 takes by Level B harassment from Pier 63 removal.
The largest Level A harassment zone for otariid pinnipeds is 6 m.
The City must enforce a minimum shutdown zone of 10 m for all
activities. At that close range, the PSOs will be able to detect
Steller sea lions and the City will implement the required shutdown
measures before Steller sea lions could enter the Level A harassment
zone. Therefore, no takes of Steller sea lions by Level A harassment
are requested or authorized.
Northern Elephant Seal
Individual elephant seals have occasionally been reported in
central Puget Sound (e.g., Orca Network, 2020) but are considered rare
in the project areas. WSDOT (2019) reported observations near Alki
Point (at the outer extent of the Level B harassment zones) and Maury
Island (just outside the Level B harassment zones) in 2017 and 2015,
respectively. Based on these reports, the City estimates that one
northern elephant seal may be taken by Level B harassment per month.
Therefore, the City requested, and NMFS has authorized, 6 takes of
northern elephant seals by Level B harassment from Pier 58
reconstruction and 3 takes by Level B harassment from Pier 63 removal.
The largest Level A harassment zone (82 m) occurs during impact
installation of steel pipe piles at Pier 58. It is unlikely that
northern elephant seals will be found within this zone, and even more
unlikely that northern elephant seals will be found within the Level A
harassment zones for vibratory pile driving at either pier (less than
12 m for all pile types). However, even if northern elephant seals are
encountered in the project areas, at that close range, the PSOs will be
able to detect them and the City will implement the required shutdown
measures before any northern elephant seals could enter the Level A
harassment zones. Therefore, no take of northern elephant seals by
Level A harassment is requested or authorized.
Harbor Seal
During monitoring for the Pier 62 Project, the maximum number of
harbor seals documented as taken by Level B harassment in one day was
54, but the average number documented per day was 5 (Anchor QEA 2019).
To account for potentially unobserved animals at the outer extent of
the Level B harassment zone during the previous monitoring, the City
estimates that 10 harbor seals per day may enter the Level B harassment
zone during pile driving work at Pier 58 for a total of 700 harbor
seals. In addition, due to their apparent curious nature and previously
reported close approaches to pile driving equipment (Anchor QEA 2019),
the City estimates that of those 700 harbor seals that could enter the
Level B harassment zone, one harbor seal may approach closer and enter
the 82-m Level A harassment zone before the animal is detected and
activities shut down, and thus be taken by Level A harassment on each
day of impact pile installation at Pier 58 (40 days). These harbor
seals would be counted as taken by Level A harassment, but would not
count toward the City's authorized number of takes of harbor seals by
Level B harassment because they would have already been counted as
Level A harassment takes. The Level A harassment zones for phocids for
all vibratory pile driving at Pier 58 are all under 12 m. At that
distance, the PSOs will be able to detect harbor seals and alert the
City to cease pile driving activities before harbor seals could enter
the Level A harassment zone. Therefore, no take of harbor seals by
Level A harassment is anticipated from vibratory pile driving at Pier
58. In total, the City has requested, and NMFS has authorized, 700
takes of harbor seals (660 takes by Level B harassment and 40 takes by
Level A harassment) from Pier 58 reconstruction.
On all but two days of work at Pier 63, the Level B harassment zone
will be well within Elliott Bay. Since the extent of the Level B
harassment zone for this project on most days is less than for Pier 58,
the City estimates that up to 6 harbor seals may be taken by Level B
harassment per day during the 47 days of pile removal at Pier 63.
Therefore, the City requested, and NMFS has authorized, 282 takes of
harbor seals by Level B harassment from Pier 63 removal.
The largest Level A harassment zone for the City's planned
activities at Pier 63 is 12 m. The City must implement a 15 m shutdown
zone to prevent Level A take of phocids for this project (see
Mitigation section). At that close range, the PSOs will be able to
detect harbor seals and alert the City to cease pile driving activities
before harbor seals could enter the Level A harassment zone. Therefore,
no take of harbor seals by Level A harassment is requested or
authorized for work at Pier 63.
[[Page 31995]]
NMFS has carefully considered all information and analysis
presented by the City as well as all other applicable information and,
based on the best available science, concurs that the City's estimates
of the types and amounts of take for each species and stock are
complete and accurate. NMFS has authorized the numbers and level of
take for each species as requested by the City.
Table 10--Authorized Take of Marine Mammals by Level A and Level B Harassment From Pier 58 Reconstruction, by
Species and Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
Authorized Authorized
Species Stock take by Level take by Level Stock Percent of
B harassment A harassment abundance stock
----------------------------------------------------------------------------------------------------------------
Gray whale.................... Eastern North 4 0 26,960 0.01
Pacific.
Minke whale................... California/ 6 0 915 0.66
Oregon/
Washington.
Killer whale.................. West Coast 36 0 349 10.32
Transient.
Bottlenose dolphin............ California 42 0 453 9.27
Coastal.
Long-beaked common dolphin.... California...... 42 0 83,379 0.05
Harbor porpoise............... Washington 408 12 11,233 3.74
Inland Waters.
Dall's porpoise............... California/ 60 12 16,498 0.44
Oregon/
Washington.
California sea lion........... U.S............. 700 0 257,606 0.27
Steller sea lion.............. Eastern......... 140 0 43,201 0.32
Northern elephant seal........ California 6 0 187,386 0.003
Breeding.
Harbor seal................... Washington 660 40 11,036 6.34
Northern Inland
Waters.
----------------------------------------------------------------------------------------------------------------
Table 11--Authorized Take of Marine Mammals by Level A and Level B Harassment From Pier 63 Removal, by Species
and Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
Authorized Authorized
Species Stock take by Level take by Level Stock Percent of
B harassment A harassment abundance stock
----------------------------------------------------------------------------------------------------------------
Gray whale.................... Eastern North 3 0 26,960 0.01
Pacific.
Minke whale................... California/ 3 0 915 0.33
Oregon/
Washington.
Killer whale.................. West Coast 18 0 349 5.16
Transient.
Bottlenose dolphin............ California 21 0 453 4.64
Coastal.
Long-beaked common dolphin.... California...... 21 0 83,379 0.02
Harbor porpoise............... Washington 235 0 11,233 2.1
Inland Waters.
Dall's porpoise............... California/ 36 0 16,498 0.22
Oregon/
Washington.
California sea lion........... U.S............. 470 0 257,606 0.18
Steller sea lion.............. Eastern......... 94 0 43,201 0.22
Northern elephant seal........ California 3 0 187,386 0.002
Breeding.
Harbor seal................... Washington 282 0 11,036 2.56
Northern Inland
Waters.
----------------------------------------------------------------------------------------------------------------
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, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers 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, and impact on
operations.
Time Restrictions
The City has provided in its description of the projects that pile
driving will occur only during daylight hours, when visual monitoring
of marine mammals can be conducted. In addition, all in-water
construction will be limited to the period between September 1 and
February 15.
Shutdown Zones
Before the commencement of in-water construction activities, the
City must establish shutdown zones for all activities. The purpose of a
shutdown zone is generally to define an area within which shutdown of
the activity will occur upon sighting of a marine mammal (or in
anticipation of an animal entering the defined area). Pile driving must
also not commence until all marine mammals are clear of their
respective shutdown zones. Shutdown zones will encompass the Level A
harassment zones for all species and
[[Page 31996]]
stocks listed in Table 3 and therefore will vary based on the activity
type and marine mammal hearing group (Tables 12 and 13). At minimum,
the shutdown zone for all hearing groups and all activities is 10 m.
For in-water heavy machinery work other than pile driving (e.g.,
standard barges, etc.), if a marine mammal comes within 10 m,
operations must cease and vessels must reduce speed to the minimum
level required to maintain steerage and safe working conditions. This
type of work could include, for example, the movement of the barge to
the pile location or positioning of the pile on the substrate via a
crane.
The City must also establish shutdown zones for all marine mammals
for which take has not been authorized, including SRKW and humpback
whales, and for which incidental take has been authorized but the
authorized number of takes has been met. These zones are equivalent to
the Level B harassment zones for each activity (see Tables 12 and 13).
The City must also implement shutdown measures for SRKW and
humpback whales. If SRKW or humpback whales are sighted within the
vicinity of the project areas and are approaching the Level B
harassment zone, the City must shut down the pile driving equipment to
avoid possible take. If a killer whale approaches the Level B
harassment zone during pile driving, and it is unknown whether it is a
SRKW or a transient killer whale, it must be assumed to be a SRKW and
the City must implement the shutdown measure. If a SRKW, an
unidentified killer whale, or a humpback whale enters the Level B
harassment zone undetected, in-water pile driving must be suspended
until the whale exits the Level B harassment zone, or 15 minutes have
elapsed with no sighting of the animal, although with the updated
mitigation measures in place it is unlikely that this will occur.
Table 12--Shutdown Zones for Pier 58 Reconstruction
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shutdown zone (m)
--------------------------------------------------------------------------------------
All unauthorized
Pile type and method species (e.g.,
LF cetacean MF cetacean HF cetacean Phocids Otariids SRKW, humpback
whale)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Timber and steel H-pile vibratory removal........................ 10 10 10 10 10 1,359
24-in steel vibratory installation and removal, 30-in steel 20 10 30 15 10 7,357
vibratory installation..........................................
30-in steel impact installation.................................. 155 10 185 85 10 215
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 13--Shutdown Zones for Pier 63 Removal
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shutdown zone (m)
--------------------------------------------------------------------------------------
All unauthorized
Pile type species (e.g.,
LF cetacean MF cetacean HF cetacean Phocids Otariids SRKW, humpback
whale)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Timber pile vibratory removal.................................... 10 10 10 10 10 1,359
Steel pile vibratory removal..................................... 20 10 30 15 10 7,357
--------------------------------------------------------------------------------------------------------------------------------------------------------
Protected Species Observers
The placement of protected species observers (PSOs) during all pile
driving activities (described in the Monitoring and Reporting section)
must ensure that the entire shutdown zone is visible. Should
environmental conditions deteriorate such that the entire shutdown zone
would not be visible (e.g., fog, heavy rain), pile driving must be
delayed until the PSO is confident marine mammals within the shutdown
zone could be detected.
Monitoring for Level A and Level B Harassment
PSOs must monitor the entire Level B harassment zones and Level A
harassment zones. To the extent practicable, PSOs must monitor the area
beyond the Level B harassment zone to enable observers to be aware of
and communicate the presence of marine mammals in the project areas
outside the shutdown zones to the City and thus prepare for a potential
cessation of activity should the animal enter the shutdown zone.
Pre-Activity Monitoring
Prior to the start of daily in-water construction activity, or
whenever a break in pile driving of 30 minutes or longer occurs, PSOs
must observe the shutdown and monitoring zones for a period of 30
minutes. The shutdown zone is 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 zones listed in Tables 12
and 13, pile driving activity must be delayed or halted. If pile
driving is delayed or halted due to the presence of a marine mammal,
the activity must not commence or resume until either the animal has
voluntarily exited and been visually confirmed beyond the shutdown
zones or 15 minutes have passed without re-detection of the animal.
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 work ceases for more than 30
minutes, the pre-activity monitoring of the shutdown zones must
commence. A determination that the shutdown zone is clear must be made
during a period of good visibility (i.e., the entire shutdown zone and
surrounding waters must be visible to the naked eye).
Coordination With Local Marine Mammal Research Network
Prior to the start of pile driving for the day, and hourly after
pile driving has begun, the PSOs must contact the Orca Network to find
out the location of the nearest marine mammal sightings. The Local
Marine Mammal Research Network consists of a list of over 600 (and
growing) residents, scientists, and government agency personnel in the
United States and Canada. Sightings are called or emailed into the Orca
Network
[[Page 31997]]
and immediately distributed to other sighting networks including: The
NMFS Northwest Fisheries Science Center, the Center for Whale Research,
Cascadia Research, the Whale Museum Hotline, and the British Columbia
Sightings Network.
Sightings information collected by the Orca Network includes
detection by hydrophone. The SeaSound Remote Sensing Network is a
system of interconnected hydrophones installed in the marine
environment of Haro Strait (west side of San Juan Island) to study orca
communication, in-water noise, bottom fish ecology, and local climatic
conditions. A hydrophone at the Port Townsend Marine Science Center
measures average in-water sound levels and automatically detects
unusual sounds. These passive acoustic devices allow researchers to
hear when different marine mammals come into the region. This acoustic
network, combined with the volunteer visual sighting network allows
researchers to document presence and location of various marine mammal
species.
Soft Start
Soft-start procedures are used 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 must provide an initial
set of three strikes from the hammer at reduced energy, followed by a
30-second waiting period, then two subsequent reduced-energy strike
sets. Soft start must be implemented at the start of each day's impact
pile driving and at any time following cessation of impact pile driving
for a period of 30 minutes or longer.
Bubble Curtain
A bubble curtain must be employed during impact installation or
proofing of steel piles. A noise attenuation device is not required
during vibratory pile driving. When a bubble curtain or similar measure
is used, it must distribute air bubbles around 100 percent of the
piling perimeter for the full depth of the water column. Any other
attenuation measure must provide 100 percent coverage in the water
column for the full depth of the pile. The lowest bubble ring must be
in contact with the mudline for the full circumference of the ring. The
weights attached to the bottom ring must ensure 100 percent mudline
contact. Parts of the ring or other objects must not prevent full
mudline contact.
Based on our evaluation of the City's proposed mitigation measures,
as well as other measures required by NMFS, NMFS has determined that
the required mitigation measures provide the means of effecting the
least practicable impact on the affected species or stocks and their
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance for the Pier 58 Reconstruction Project.
NMFS also finds that the City's proposed mitigation measures and other
measures required by NMFS provide the means of effecting the least
practicable impact on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance for the Pier 63 Removal Project.
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 while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<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 during pile driving activities must be
conducted by PSOs meeting NMFS' standards and 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 education (degree in biological
science or related field) or training for experience; and
<bullet> Where a team of three or more PSOs is required, a lead
observer or monitoring coordinator must be designated. The lead
observer is required to have prior experience working as a marine
mammal observer during construction.
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.
The City must have PSOs stationed around Elliott Bay to monitor
during all pile driving activities. During removal of timber and/or
steel H-piles at Pier 58
[[Page 31998]]
and Pier 63, two PSOs must monitor the area, one at the construction
site and one at Alki Point on the south side of Elliott Bay. During
vibratory removal and/or installation of steel piles at Pier 58 and
Pier 63, PSOs must be stationed at the same locations as above, with an
additional PSO monitoring from Magnolia on the north side of Elliott
Bay and one PSO monitoring from the Seattle-Bainbridge ferry. Impact
installation of 30-inch permanent steel piles at Pier 58 is expected to
occur on the same day as vibratory installation of those piles. If all
vibratory installation has concluded for the day, only the PSO
stationed at the construction site is required to continue monitoring
during impact pile driving.
Monitoring must be conducted 30 minutes before, during, and 30
minutes after all in water construction activities. In addition,
observers must record all incidents of marine mammal occurrence,
regardless of distance from activity, and must document any behavioral
reactions in concert with distance from piles being driven or removed.
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 pile driving equipment is no more than 30 minutes.
Reporting
A draft marine mammal monitoring report must be submitted to NMFS
within 90 days after the completion of pile driving activities, or 60
days prior to a requested date of issuance of any future IHAs for the
project, or other projects at the same location, whichever comes first.
All draft and final monitoring reports must be submitted to
<a href="/cdn-cgi/l/email-protection#3464661a7d60641a795b5a5d405b465d5a536651445b464047745a5b55551a535b42"><span class="__cf_email__" data-cfemail="762624583f2226583b19181f0219041f181124130619040205361819171758111900">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#19504d49375f766e757c6b5977767878377e766f"><span class="__cf_email__" data-cfemail="80c9d4d0aec6eff7ece5f2c0eeefe1e1aee7eff6">[email protected]</span></a>. The marine
mammal report must 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: (a) How many and what type of piles were
driven or removed and the method (i.e., impact or vibratory); and (b)
the total duration of time for each pile (vibratory driving) and number
of strikes for each pile (impact driving);
<bullet> PSO locations during marine mammal monitoring; and
<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.
For each observation of a marine mammal, the following must be
reported:
<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 or hole being drilled 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> 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 specified
actions that ensued, and resulting changes in behavior of the
animal(s), if any.
If no comments are received from NMFS within 30 days, the draft
reports will constitute the final reports. If comments are received, a
final report addressing NMFS' comments must be submitted within 30 days
after receipt of comments. All PSO datasheets and/or raw sighting data
must be submitted with the draft marine mammal report.
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the City must report the
incident to the Office of Protected Resources (OPR)
(<a href="/cdn-cgi/l/email-protection#0f5f5d21465b5f21426061667b607d6661685d6a7f607d7b7c4f61606e6e21686079"><span class="__cf_email__" data-cfemail="5505077b1c01057b183a3b3c213a273c3b320730253a272126153b3a34347b323a23">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#88c1dcd8a6cee7ffe4edfac8e6e7e9e9a6efe7fe"><span class="__cf_email__" data-cfemail="90d9c4c0bed6ffe7fcf5e2d0fefff1f1bef7ffe6">[email protected]</span></a>), NMFS (301-
427-8401) and to the West Coast Region (WCR) regional stranding
coordinator (866-767-6114) as soon as feasible. If the death or injury
was clearly caused by the specified activity, the City 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
IHAs. The City must not resume their activities until notified by NMFS.
The report must include the following information:
1. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the
animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the
animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and
6. General circumstances under which the animal was discovered.
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 impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338;
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
Pile driving activities from Pier 58 reconstruction and Pier 63
removal have the potential to disturb or displace marine mammals and
cause auditory
[[Page 31999]]
injury (PTS). Specifically, the project activities may result in take,
in the form of Level A and Level B harassment, from underwater sounds
generated from pile driving. Potential takes could occur if individuals
are present in the ensonified zone when these activities are underway.
The takes from Level A and Level B harassment would be due to
potential behavioral disturbance, TTS, and PTS. Serious injury or
mortality are not anticipated or authorized given the nature of the
activities and measures designed to minimize the possibility of injury
to marine mammals. The potential for harassment is minimized through
the construction method and the implementation of the required
mitigation measures (see Mitigation section).
To avoid repetition, the majority of our analysis applies to all
the species listed in Table 3, and to both the Pier 58 and Pier 63
IHAs, given that the anticipated effects of the City's two projects on
these different marine mammal stocks are expected to be relatively
similar in nature. Where there are special circumstances for a species
or stock (e.g., gray whales), they are included as a separate
subsection below. Similarly, where there are differences between the
two IHAs, they are highlighted below.
NMFS has identified key factors which may be employed to assess the
level of analysis necessary to conclude whether potential impacts
associated with a specified activity should be considered negligible.
These include (but are not limited to) the type and magnitude of
taking, the amount and importance of the available habitat for the
species or stock that is affected, the duration of the anticipated
effect to the species or stock, and the status of the species or stock.
The following factors support negligible impact determinations for all
affected stocks.
No take by Level A harassment is anticipated or authorized
incidental to the Pier 63 Removal Project. For the Pier 58
Reconstruction Project, take by Level A harassment is authorized for
three species (harbor seals, harbor porpoise, and Dall's porpoise) to
account for the possibility that an animal could enter a Level A
harassment zone prior to detection, and remain within that zone for a
duration long enough to incur PTS before being observed and the City
shutting down pile driving activity. Any take by Level A harassment is
expected to arise from, at most, a small degree of PTS, i.e., minor
degradation of hearing capabilities within regions of hearing that
align most completely with the energy produced by impact pile driving
(i.e. the low-frequency region below 2 kHz), not severe hearing
impairment or impairment within the ranges of greatest hearing
sensitivity. Animals would need to be exposed to higher levels and/or
longer duration than are expected to occur here in order to incur any
more than a small degree of PTS. Two of the 3 species for which Level A
harassment is authorized are high-frequency cetaceans (harbor porpoise
and Dall's porpoise), and the hearing ability of the third species for
which Level A harassment is authorized (harbor seal) below 2 kHz is
also poor (NMFS, 2018). Given the hearing ranges of these 3 species,
PTS incurred at the low frequencies of pile driving noise would not
interfere either with conspecific communication or echolocation, and
therefore would not be expected to impact on the survival or
reproductive abilities of the affected individuals, let alone the stock
or population.
Additionally, the amount of authorized take by Level A harassment
is very low for all marine mammal stocks and species. For the Pier 58
Reconstruction Project, for 10 of 13 stocks, NMFS anticipates and
authorizes no Level A harassment take over the duration of the IHA
period; for the other three stocks, NMFS authorizes no more than 40
takes by Level A harassment for any species or stock. These low numbers
of takes of individuals by Level A harassment (and involving only a
small degree of PTS) are not expected to affect the reproductive
success or survival of any individuals, much less result in adverse
impacts on the species or stock.
As described above, NMFS expects that marine mammals would likely
move away from an aversive stimulus, especially at levels that would be
expected to result in PTS, given sufficient notice through use of soft
start. The City is also required to shut down pile driving activities
if marine mammals approach within hearing group-specific zones that
encompass the Level A harassment zones (see Tables 12 and 13), further
minimizing the likelihood and degree of PTS that would be incurred.
Even absent mitigation, no serious injury or mortality from
construction activities is anticipated or authorized.
Effects on individuals that are taken by Level B harassment in the
form of behavioral disruption, on the basis of reports in the
literature as well as monitoring from other similar activities, will
likely be limited to reactions such as avoidance, increased swimming
speeds, increased surfacing time, or decreased foraging (if such
activity were occurring) (e.g., Thorson and Reyff 2006). Most likely,
individuals would simply move away from the sound source and
temporarily avoid the area where pile driving is occurring. If sound
produced by project activities is sufficiently disturbing, animals are
likely to simply avoid the area while the activities are occurring,
particularly as the project is located on a busy waterfront with high
amounts of vessel traffic. We expect that any avoidance of the project
areas by marine mammals would be temporary in nature and that any
marine mammals that avoid the project areas during construction would
not be permanently displaced. Short-term avoidance of the project areas
and energetic impacts of interrupted foraging or other important
behaviors is unlikely to affect the reproduction or survival of
individual marine mammals, and the effects of behavioral disturbance on
individuals is not likely to accrue in a manner that would affect the
rates of recruitment or survival of any affected stock.
Additionally, and as noted previously, some subset of the
individuals that are behaviorally harassed could also simultaneously
incur some small degree of TTS for a short duration of time. However,
since the hearing sensitivity of individuals that incur TTS is expected
to recover completely within minutes to hours, it is unlikely that the
brief hearing impairment would affect the individual's long-term
ability to forage and communicate with conspecifics, and would
therefore not likely impact reproduction or survival of any individual
marine mammal, let alone adversely affect rates of recruitment or
survival of the species or stock.
The projects are 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 (with no known particular
importance to marine mammals), the impacts to marine mammal habitat are
not expected to cause significant or long-term negative consequences.
Aside from the biologically important area (BIA) for gray whales
described below, there are no known areas of importance for other
marine mammals, such as feeding or pupping areas, in the project area.
[[Page 32000]]
For all species and stocks, and both project areas (Pier 58 and
63), take would occur within a limited, relatively confined area
(Elliott Bay within central Puget Sound) of the stocks' ranges. Given
the availability of suitable habitat nearby, any displacement of marine
mammals from the project areas is not expected to affect marine
mammals' fitness, survival, and reproduction due to the limited
geographic area that will be affected in comparison to the much larger
habitat for marine mammals in Puget Sound. Level A harassment and Level
B harassment will be reduced to the level of least practicable adverse
impact to the marine mammal species or stocks and their habitat through
use of mitigation measures described herein. Some individual marine
mammals in the project areas may be present and be subject to repeated
exposure to sound from pile driving on multiple days. However, these
individuals would likely return to normal behavior during gaps in pile
driving activity. The Seattle Waterfront is a busy industrial area and
monitoring reports from previous in-water pile driving activities in
the area (e.g., WSDOT, 2022; Anchor QEA, 2019) indicate that marine
mammals continue to remain in the greater project area throughout pile
driving activities. Therefore, any behavioral effects of repeated or
long duration exposures are not expected to negatively affect survival
or reproductive success of any individuals. Thus, even repeated Level B
harassment of some small subset of an overall stock is unlikely to
result in any effects on rates of reproduction and survival of the
stock.
Gray Whales
Puget Sound is part of a BIA for migrating gray whales
(Calambokidis et al., 2015). While Elliott Bay is included in the BIA,
gray whales typically remain further north in Puget Sound, primarily in
the waters around Whidbey Island (Calambokidis et al., 2018). Gray
whales are rarely observed in Elliott Bay. Therefore, even though the
project areas overlap with the BIA, the infrequent occurrence of gray
whales suggests that the projects would have minimal, if any, impact on
the migration of gray whales in the BIA, and would therefore not affect
reproduction or survival.
There is an ongoing UME for gray whales (see the Description of
Marine Mammals in the Area of Specified Activities section in the
notice of proposed IHAs (87 FR 12089; March 3, 2022)). However, we do
not expect the authorized takes to exacerbate or compound upon this
ongoing UME. As noted previously, no Level A harassment, serious
injury, or mortality is expected or authorized, and any Level B
harassment takes of gray whales would most likely be in the form of
behavioral disturbance. Preliminary findings from necropsied gray
whales that are considered part of the ongoing UME have shown evidence
of emaciation, suggesting that impacts to feeding would be of most
concern. However, the project areas have not been identified as
important for feeding of gray whales. Additionally, the project areas
are not considered important for breeding gray whales. Therefore the
projects are unlikely to disrupt any critical behaviors (e.g., feeding,
mating) or have any effect on the reproduction or survival of gray
whales, even in light of the ongoing UME.
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 any of the species or stocks
through effects on annual rates of recruitment or survival:
<bullet> No mortality or serious injury is anticipated or
authorized for either project;
<bullet> No take of any species by Level A harassment is
anticipated or authorized for the Pier 63 Removal Project;
<bullet> For the Pier 58 Reconstruction Project, Level A harassment
is not anticipated or authorized for 8 of the 11 species. For the other
3 species (2 high-frequency cetaceans and 1 phocid pinniped), the
amount of Level A harassment is low and would be in the form of a
slight degree of PTS in limited low frequency ranges (<2 kHz) which are
not the most sensitive primary hearing ranges for these species and
would not interfere with conspecific communication or echolocation;
<bullet> For both projects, Level B harassment would be in the form
of behavioral disturbance, primarily resulting in avoidance of the
project areas around where impact or vibratory pile driving is
occurring, and some low-level TTS that may limit the detection of
acoustic cues for relatively brief amounts of time in relatively
confined footprints of the activities;
<bullet> Nearby areas of similar habitat value within Puget Sound
are available for marine mammals that may temporarily vacate the
project areas during construction activities for both projects;
<bullet> Effects on species that serve as prey for marine mammals
from the activities are expected to be short-term and, therefore, any
associated impacts on marine mammal feeding are not expected to result
in significant or long-term consequences for individuals, or to accrue
to adverse impacts on their populations from either project;
<bullet> The number of anticipated takes by Level B harassment is
relatively low for all stocks for both projects;
<bullet> The ensonified areas from both projects are very small
relative to the overall habitat ranges of all species and stocks, and
will not adversely affect ESA-designated critical habitat, or cause
more than minor impacts in any BIAs or any other areas of known
biological importance;
<bullet> The lack of anticipated significant or long-term negative
effects to marine mammal habitat from either project;
<bullet> The efficacy of the mitigation measures in reducing the
effects of the specified activities on all species and stocks for both
projects;
<bullet> The enhanced mitigation measures (e.g., shutdown zones
equivalent to the Level B harassment zones) to eliminate the potential
for any take of unauthorized species; and
<bullet> Monitoring reports from similar work in Puget Sound that
have documented little to no behavioral effect on individuals of the
same species that could be impacted by the specified activities from
both projects, suggesting the degree/intensity of behavioral harassment
would be minimal.
Based on the analysis contained herein of the likely effects of the
specified activities on marine mammals and their habitat, and taking
into consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the Pier 58
Reconstruction Project will have a negligible impact on all affected
marine mammal species or stocks. NMFS also finds that the total marine
mammal take from the Pier 63 Removal project 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
[[Page 32001]]
may be considered in the analysis, such as the temporal or spatial
scale of the activities.
The authorized take for each project is below one third of the
population for all marine mammal stocks (Tables 10 and 11).
Based on the analysis contained herein of the proposed activities
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS finds that small numbers of
marine mammals would be taken relative to the population size of the
affected species or stocks for the Pier 58 Reconstruction Project. NMFS
also finds that small numbers of marine mammals would be taken relative
to the population size of the affected species or stocks for the Pier
63 Removal 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 propose to authorize take for
endangered or threatened species.
No incidental take of ESA-listed species is authorized or expected
to result from these activities. Therefore, NMFS has determined that
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 proposed action (i.e., the issuance of two IHAs)
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 IHAs to
the City, one each for their Pier 58 Reconstruction Project and their
Pier 63 Removal Project on the Seattle Waterfront in Seattle,
Washington (both effective from August 1, 2022 through July 31, 2023),
with the previously discussed mitigation, monitoring, and reporting
requirements incorporated.
Dated: May 20, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-11280 Filed 5-25-22; 8:45 am]
BILLING CODE 3510-22-P
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