Notice2023-19016
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to In-Water Construction on Bainbridge Island, 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
September 5, 2023
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 a Renewal incidental harassment authorization (IHA) to Washington State Department of Transportation (WSDOT) Ferries Division to incidentally harass marine mammals incidental to the Bainbridge Island Ferry Terminal Overhead Loading Replacement Project on Bainbridge Island, Washington within the Puget Sound.
Full Text
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<title>Federal Register, Volume 88 Issue 170 (Tuesday, September 5, 2023)</title>
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[Federal Register Volume 88, Number 170 (Tuesday, September 5, 2023)]
[Notices]
[Pages 60645-60648]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-19016]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD220]
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; issuance of renewal incidental harassment
authorization.
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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 a Renewal incidental harassment authorization
(IHA) to Washington State Department of Transportation (WSDOT) Ferries
Division to incidentally harass marine mammals incidental to the
Bainbridge Island Ferry Terminal Overhead Loading Replacement Project
on Bainbridge Island, Washington within the Puget Sound.
DATES: This renewal IHA is valid from September 16, 2023 through
September 15, 2024.
ADDRESSES: 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.
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 1 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).
<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.
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 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>.
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 the Renewal IHA, the
activities for which incidental take is requested consist of activities
that are covered by the initial authorization but
[[Page 60646]]
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. The notice of the proposed Renewal incidental
harassment authorization was published on July 26, 2023 (88 FR 48194).
Description of the Specified Activities and Anticipated Impacts
The WSDOT construction project consists of the Bainbridge Ferry
Overhead Loading Replacement Project (the Bainbridge Project) and the
Eagle Harbor Slip F Project (the Eagle Harbor 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 2 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 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-in 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 planned 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 planned
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 authorized 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, September 26, 2022). As previously mentioned, this request
is for a subset of the activities authorized 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 notices. The
Renewal IHA is 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 take is authorized here, including information on abundance,
status, distribution, and hearing, may be found in the notices 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.
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 take is
authorized here may be found in the Federal Register notices 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, other scientific literature, and the public comments,
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 Federal Register
notices of the proposed and final IHAs for the initial authorization
(87 FR 48623, August 10, 2022; 87 FR 58313, September 26, 2022).
Specifically, the source levels, days of operation, and marine mammal
density and occurrence data applicable to this authorization remain
unchanged from the previously issued IHA. Similarly, the stocks taken,
methods of take, and types of take remain unchanged from the initial
IHA, as do the number of takes, which are indicated below in Table 1.
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Table 1--Amount of Taking, by Level B Harassment, by Species and Stock and Percent of Take by Stock
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Species Stock Proposed take Percent of stock
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Harbor seal................................. Washington Northern Inland 60 0.5
Waters.
California sea lion......................... US............................ 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 Mitigation, Monitoring and Reporting Measures
The mitigation, monitoring, and reporting measures included as
requirements in this 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 remains accurate (87 FR 48623, August 10, 2022). The
following measures are included in 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 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
NMFS received no public comments.
Determinations
NMFS has 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.
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 determined that the application of this categorical
exclusion remains appropriate for this Renewal IHA.
Endangered Species Act (ESA)
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.
Renewal
NMFS has issued a Renewal IHA to WSDOT for the take of marine
mammals incidental to conducting Bainbridge Island Ferry Terminal
Overhead Loading Replacement Project on Bainbridge Island, Washington
within
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the Puget Sound, from September 16, 2023 through September 15, 2024.
Dated: August 29, 2023.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2023-19016 Filed 9-1-23; 8:45 am]
BILLING CODE 3510-22-P
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