Notice2023-15755
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to In-Water Construction on Bainbridge Island, Washington
Primary source
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Published
July 26, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS received a request from Washington State Department of Transportation (WSDOT) Ferries Division for the renewal of their currently active incidental harassment authorization (IHA) to take marine mammals incidental to the Bainbridge Island Ferry Terminal Overhead Loading Replacement Project on Bainbridge Island, Washington within the Puget Sound. These activities consist of activities that are covered by the current authorization but will not be completed prior to its expiration. Pursuant to the Marine Mammal Protection Act, prior to issuing the currently active IHA, NMFS requested comments on both the proposed IHA and the potential for renewing the initial authorization if certain requirements were satisfied. The renewal requirements have been satisfied, and NMFS is now providing an additional 15-day comment period to allow for any additional comments on the proposed renewal not previously provided during the initial 30-day comment period.
Full Text
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<title>Federal Register, Volume 88 Issue 142 (Wednesday, July 26, 2023)</title>
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[Federal Register Volume 88, Number 142 (Wednesday, July 26, 2023)]
[Notices]
[Pages 48191-48194]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15755]
[[Page 48191]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD137]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to In-Water Construction on Bainbridge
Island, Washington
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; request for comments on proposed renewal incidental
harassment authorization (IHA).
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SUMMARY: NMFS received a request from Washington State Department of
Transportation (WSDOT) Ferries Division for the renewal of their
currently active incidental harassment authorization (IHA) to take
marine mammals incidental to the Bainbridge Island Ferry Terminal
Overhead Loading Replacement Project on Bainbridge Island, Washington
within the Puget Sound. These activities consist of activities that are
covered by the current authorization but will not be completed prior to
its expiration. Pursuant to the Marine Mammal Protection Act, prior to
issuing the currently active IHA, NMFS requested comments on both the
proposed IHA and the potential for renewing the initial authorization
if certain requirements were satisfied. The renewal requirements have
been satisfied, and NMFS is now providing an additional 15-day comment
period to allow for any additional comments on the proposed renewal not
previously provided during the initial 30-day comment period.
DATES: Comments and information must be received no later than August
10, 2023.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service, and should be submitted via email to
<a href="/cdn-cgi/l/email-protection#93dac7c3bdc4f2f0fbe7f6fdf7fcfdf8d3fdfcf2f2bdf4fce5"><span class="__cf_email__" data-cfemail="713825215f2610121905141f151e1f1a311f1e10105f161e07">[email protected]</span></a>. Electronic copies of the original
application, renewal request, and supporting documents (including NMFS
Federal Register notices of the original proposed and final
authorizations, and the previous IHA), as well as a list of the
references cited in this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed below.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. Attachments to comments will be
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All
comments received are a part of the public record and will generally be
posted online at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> without change. All
personal identifying information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
confidential business information or otherwise sensitive or protected
information.
FOR FURTHER INFORMATION CONTACT: Rachel Wachtendonk, Office of
Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The Marine Mammal Protection Act (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 issued or, if the taking is limited to
harassment, an incidental harassment authorization is issued.
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 such species or stocks for
taking for certain subsistence uses (referred to here as ``mitigation
measures''). Monitoring and reporting of such takings are also
required. The meaning of key terms such as ``take,'' ``harassment,''
and ``negligible impact'' can be found in section 3 of the MMPA (16
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e)
indicate that IHAs may be renewed for additional periods of time not to
exceed one year for each reauthorization. In the notice of proposed IHA
for the initial authorization, NMFS described the circumstances under
which we would consider issuing a renewal for this activity, and
requested public comment on a potential renewal under those
circumstances. Specifically, on a case-by-case basis, NMFS may issue a
one-time 1-year renewal IHA following notice to the public providing an
additional 15 days for public comments when (1) up to another year of
identical, or nearly identical, activities as described in the Detailed
Description of Specified Activities section of the initial IHA issuance
notice is planned or (2) the activities as described in the Description
of the Specified Activities and Anticipated Impacts section of the
initial IHA issuance notice would not be completed by the time the
initial IHA expires and a renewal would allow for completion of the
activities beyond that described in the DATES section of the notice of
issuance of the initial IHA, provided all of the following conditions
are met:
1. A request for renewal is received no later than 60 days prior to
the needed renewal IHA effective date (recognizing that the renewal IHA
expiration date cannot extend beyond 1 year from expiration of the
initial IHA);
2. The request for renewal must include the following:
<bullet> An explanation that the activities to be conducted under
the requested renewal IHA are identical to the activities analyzed
under the initial IHA, are a subset of the activities, or include
changes so minor (e.g., reduction in pile size) that the changes do not
affect the previous analyses, mitigation and monitoring requirements,
or take estimates (with the exception of reducing the type or amount of
take); and
<bullet> A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized; and
3. Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than
[[Page 48192]]
minor changes in the activities, the mitigation and monitoring measures
will remain the same and appropriate, and the findings in the initial
IHA remain valid.
An additional public comment period of 15 days (for a total of 45
days), with direct notice by email, phone, or postal service to
commenters on the initial IHA, is provided to allow for any additional
comments on the proposed renewal. A description of the renewal process
may be found on our website at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>. Any
comments received on the potential renewal, along with relevant
comments on the initial IHA, have been considered in the development of
this proposed IHA renewal, and a summary of agency responses to
applicable comments is included in this notice. NMFS will consider any
additional public comments prior to making any final decision on the
issuance of the requested renewal, and agency responses will be
summarized in the final notice of our decision.
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 an IHA
renewal) with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental take authorizations 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 determined that the issuance of the
initial IHA qualified to be categorically excluded from further NEPA
review. NMFS has preliminarily determined that the application of this
categorical exclusion remains appropriate for this renewal IHA.
History of Request
On September 16, 2022, NMFS issued an IHA to WSDOT to take marine
mammals incidental to two in-water construction projects on Bainbridge
Island, Washington, in the Puget Sound: the Bainbridge Island Ferry
Terminal Overhead Loading Replacement Project and Eagle Harbor
Maintenance Facility Slip F Improvement Project (87 FR 58313),
effective from September 16, 2022 through September 15, 2023. On
February 15, 2023, NMFS received an application for the renewal of that
initial IHA. As described in the application for renewal IHA, the
activities for which incidental take is requested, consist of
activities that are covered by the initial authorization but will not
be completed prior to its expiration. As required, the applicant also
provided a preliminary monitoring report which confirms that the
applicant has implemented the required mitigation and monitoring, and
which also shows that no impacts of a scale or nature not previously
analyzed or authorized have occurred as a result of the activities
conducted.
Description of the Specified Activities and Anticipated Impacts
The WSDOT construction project consists of the Eagle Harbor Slip F
Project (the Eagle Harbor Project) and the Bainbridge Ferry Overhead
Loading Replacement Project (the Bainbridge Project). The Bainbridge
Project consists of replacing the timber trestle and fixed steel
portions of the overhead loading structure. This will require the
installation of temporary work platforms, installation of a temporary
walkway, installation of a new permanent walkway, the removal of the
existing overhead loading walkway, and removal of all temporary work
platforms and walkways. The Eagle Harbor Project consists of improving
the maintenance efficiency of the facility. This will require replacing
the existing gangplank system with a pile supported trestle, replacing
the existing pair of timber dolphins with a pair of steel wingwalls and
two fixed dolphins, and the removal of the existing timber walkway/
trestle, four timber pile dolphins, and a U-float.
In total, the initial Bainbridge Project included the installation
and removal of 39 24-inch (in) diameter temporary steel pipe piles, the
installation of 26 permanent piles (14 30-in and 12 36-in steel pipe
piles), and the removal of 76 12-in timber piles. All temporary and
permanent piles would be installed first using a vibratory hammer to
within 5 feet (ft; 1.5 meter (m)) of tip elevation, and then driven
with an impact hammer to verify bearing capacity. The existing timber
piles would be removed using a vibratory hammer. The vibratory and
impact installation and vibratory extraction of the piles were expected
to take up to 57 days of in-water work. The initial Eagle Harbor
Project expected the installation of a new trestle supported by 9 24-in
and 2 36-in steel pipe piles, the installation of the pair of steel
wingwalls which would consist of 4 36-in steel reaction piles and 2 36-
in fender piles, the installation of two fixed dolphins which would
consist of 4 30-in diameter steel reaction piles and 1 36-inch diameter
fender pile, and the removal of 186 12-in timber piles and 4 18-in
steel piles. The piles supporting the trestle would be installed first
using a vibratory hammer to within 5 ft (1.5 m) of tip elevation, and
then driven with an impact hammer to verify bearing capacity. The
installation of the wingwall and dolphin piles and the removal of the
steel and timber piles would use a vibratory hammer only. The vibratory
and impact installation and vibratory extraction of the piles was
expected to take up to 31 days of in-water work.
Under the initial IHA, all work associated with the Eagle Harbor
Slip F Project was completed over a 22-day period with use of a
vibratory and impact hammer. For the Bainbridge Ferry Terminal Overhead
Loading Replacement Project, all project related pile installation
activities were completed over a 33-day period with use of a vibratory
and impact hammer.
This renewal request is to cover the subset of the activities
described for the initial IHA that will not be completed during the
effective IHA period. WSDOT plans to remove all 45 12-inch steel pipe
and timber piles through vibratory means between September 2023 and
September 2024. WSDOT estimates it will take 30 minutes to remove a
single pile, with up to 10 piles removed per day.
The likely or possible impacts of the WSDOT's proposed activity on
marine mammals could involve both non-acoustic and acoustic stressors
and is unchanged from the impacts described in the initial IHA.
Potential non-acoustic stressors could result from the physical
presence of the equipment, vessels, and personnel; however, any impacts
to marine mammals are expected to primarily be acoustic in nature.
Acoustic stressors include effects of heavy equipment operation during
pile removal. The effects of underwater noise from the WSDOT's proposed
activities have the potential to result in Level B harassment of marine
mammals in the action area
Detailed Description of the Activity
A detailed description of the construction activities for which
take is proposed here may be found in the notices of the proposed and
final IHAs for the initial authorization (87 FR 48623, August 10, 2022;
87 FR 58313,
[[Page 48193]]
November 16, 2022). As previously mentioned, this request is for a
subset of the activities anticipated in the initial IHA that would not
be completed prior to its expiration. The location, timing, and nature
of the activities, including the types of equipment planned for use,
are identical to those described in the previous notice for the initial
IHA. WSDOT is requesting a renewal IHA for the vibratory removal of 45
12-in timber and steel pipe piles. The proposed renewal would be
effective for a period not exceeding one year from the date of
expiration of the initial IHA. The proposed renewal IHA would be
effective from September 16, 2023 through September 15, 2024.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which authorization of take is proposed here, including information
on abundance, status, distribution, and hearing, may be found in the
notice of the proposed IHA for the initial authorization (87 FR 48623,
August 10, 2022). NMFS has reviewed the monitoring data from the
initial IHA, recent draft stock assessment reports, information on
relevant unusual mortality events, and other scientific literature, and
determined that neither this nor any other new information affects
which species or stocks have the potential to be affected or the
pertinent information in the description of the marine mammals in the
area of specified activities contained in the supporting documents for
the initial IHA (87 FR 48623, August 10, 2022).
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat for the activities for which the
authorization of take is proposed here may be found in the notice of
the proposed IHA for the initial authorization (87 FR 48623, August 10,
2022). NMFS has reviewed the monitoring data from the initial IHA,
recent draft stock assessment reports, information on relevant unusual
mortality events, and other scientific literature, and determined that
neither this nor any other new information affects our initial analysis
of impacts on marine mammals and their habitat.
Estimated Take
A detailed description of the methods and inputs used to estimate
take for the specified activity are found in the notices of the
proposed and final IHAs for the initial authorization (87 FR 48623,
August 10, 2022; 87 FR 58313, November 16, 2022). Specifically, days of
operation, area or space within which harassment is likely to occur,
and marine mammal occurrence data applicable to this authorization
remain unchanged from the initial IHA. Similarly, the stocks taken,
methods of take, daily take estimates and types of take remain
unchanged from the initial IHA. The number of takes proposed for
authorization in this renewal are a subset of the initial authorized
takes that represent the amount of activity left to complete. These
takes, which reflect the lower number of remaining days of work, are
indicated below in Table 1.
Table 1--Proposed Amount of Taking, by Level B Harassment, by Species and Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
Percent of
Species Stock Proposed take stock
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Harbor seal................................... Washington Northern Inland 60 0.5
Waters.
California sea lion........................... U.S............................. 3 <0.1
Steller sea lion.............................. Eastern......................... 1 <0.1
Killer whale.................................. West Coast Transient............ \1\ 6 1.7
Harbor porpoise............................... Washington Inland Waters........ 9 <0.1
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\1\ Modeled take of 1 increased to typical group size (Ford et al. 2013).
Description of Proposed Mitigation, Monitoring and Reporting Measures
The proposed mitigation, monitoring, and reporting measures
included as requirements in the proposed renewal authorization are
identical to those included in the Federal Register notice announcing
the issuance of the initial IHA, and the discussion of the least
practicable adverse impact included in that document and the notice of
the proposed IHA remains accurate. The following measures are proposed
for this renewal:
<bullet> WSDOT must avoid direct physical interaction with marine
mammals during construction activity. If a marine mammal comes within
10 m of such activity, operations must cease and vessels must reduce
speed to the minimum level required to maintain steerage and safe
working conditions, as necessary to avoid direct physical interaction;
<bullet> Pre-start clearance monitoring must be conducted during
periods of visibility sufficient for the lead Protected Species
Observer (PSO) to determine the shutdown zones clear of marine mammals.
Construction may commence when the determination is made;
<bullet> Pile driving/removal activity must be halted upon
observation of either a species for which incidental take is not
authorized or a species for which incidental take has been authorized
but the authorized number of takes has been met, entering or within the
harassment zone;
<bullet> WSDOT will establish and implement the shutdown zones. The
purpose of a shutdown zone is generally to define an area within which
shutdown of the activity would occur upon sighting of a marine mammal
(or in anticipation of an animal entering the defined area). Shutdown
zones typically vary based on the activity type and marine mammal
hearing group. Since the Level A harassment threshold is under 10 m for
all hearing groups, the shutdown zone for all hearing groups will be 10
m;
<bullet> WSDOT must also implement shutdown measures for Southern
Resident killer whales and humpback whales. If Southern Resident killer
whales or humpback whales are sighted within the vicinity of the
project areas and are approaching the Level B harassment zone, WSDOT
must shut down the pile driving equipment to avoid possible take of
these species. If a killer whale approaches the Level B harassment zone
during pile driving, and it is unknown whether it is a Southern
Resident killer whale or a transient killer whale, it must be assumed
to be a Southern Resident killer whale and WSDOT would implement the
shutdown measure. The shutdown zone for Southern Resident
[[Page 48194]]
killer whales, humpback whales, and other unauthorized species is 2,175
m;
<bullet> Prior to the start of pile driving for the day, the PSOs
must contact the Orca Network to find out the location of the nearest
marine mammal sightings;
<bullet> WSDOT must submit a draft report detailing all monitoring
within 90 calendar days of the completion of marine mammal monitoring
or 60 days prior to the issuance of any subsequent IHA for this
project, whichever comes first;
<bullet> WSDOT must prepare and submit final report within 30 days
following resolution of comments on the draft report from NMFS;
<bullet> WSDOT must submit all PSO datasheets and/or raw sighting
data (in a separate file from the Final Report referenced immediately
above); and
<bullet> WSDOT must report injured or dead marine mammals.
Comments and Responses
As noted previously, NMFS published a notice of a proposed IHA (87
FR 48623, August 10, 2022) and solicited public comments on both our
proposal to issue the initial IHA for the Bainbridge Island Ferry
Terminal Overhead Loading Replacement Project and Eagle Harbor
Maintenance Facility Slip F Improvement Project and on the potential
for a renewal IHA, should certain requirements be met. During the 30-
day public comment period, the United States Geological Survey provided
a letter stating that it had no comment. No other comments were
received on either the proposal to issue the initial IHA for the
WSDOT's construction activities or on the potential for a renewal IHA.
Preliminary Determinations
The proposed renewal request consists of a subset of activities
analyzed through the initial authorization described above. In
analyzing the effects of the activities for the initial IHA, NMFS
determined that the WSDOT's activities would have a negligible impact
on the affected species or stocks and that authorized take numbers of
each species or stock were small relative to the relevant stocks (e.g.,
less than one-third the abundance of all stocks). The mitigation
measures and monitoring and reporting requirements as described above
are identical to the initial IHA.
NMFS has preliminarily concluded that there is no new information
suggesting that our analysis or findings should change from those
reached for the initial IHA. Based on the information and analysis
contained here and in the referenced documents, NMFS has determined the
following: (1) the required mitigation measures will effect the least
practicable impact on marine mammal species or stocks and their
habitat; (2) the authorized takes will have a negligible impact on the
affected marine mammal species or stocks; (3) the authorized takes
represent small numbers of marine mammals relative to the affected
stock abundances; (4) WSDOT's activities will not have an unmitigable
adverse impact on taking for subsistence purposes as no relevant
subsistence uses of marine mammals are implicated by this action, and
(5) appropriate monitoring and reporting requirements are included.
Endangered Species Act
No incidental take of ESA-listed species is proposed for
authorization or expected to result from this activity. Therefore, NMFS
has determined that formal consultation under section 7 of the ESA is
not required for this action.
Proposed Renewal IHA and Request for Public Comment
As a result of these preliminary determinations, NMFS proposes to
issue a renewal IHA to WSDOT for conducting Bainbridge Island Ferry
Terminal Overhead Loading Replacement Project (the Bainbridge Project)
in Bainbridge Island, Washington, from September 16, 2023 through
September 15 2024, provided the previously described mitigation,
monitoring, and reporting requirements are incorporated. A draft of the
proposed and final initial IHA can be found at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. We request comment on our analyses, the
proposed renewal IHA, and any other aspect of this notice. Please
include with your comments any supporting data or literature citations
to help inform our final decision on the request for MMPA
authorization.
Dated: July 20, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-15755 Filed 7-25-23; 8:45 am]
BILLING CODE 3510-22-P
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