Notice2024-18146
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental To Ferndale Refinery Dock Maintenance and Pile Replacement Activities in Ferndale, 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
August 14, 2024
Effective
July 31, 2025
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 an incidental harassment authorization (IHA) to Phillips 66 Co. to incidentally harass marine mammals during construction activities associated with a dock replacement project in Ferndale, Washington.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 157 (Wednesday, August 14, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 157 (Wednesday, August 14, 2024)]
[Notices]
[Pages 66057-66067]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-18146]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE180]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental To Ferndale Refinery Dock Maintenance
and Pile Replacement Activities in Ferndale, Washington
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Phillips 66 Co. to incidentally harass marine mammals during
construction activities associated with a dock replacement project in
Ferndale, Washington.
DATES: This authorization is effective from August 1 through July 31,
2025.
ADDRESSES: 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/action/incidental-take-authorization-phillips-66-cos-ferndale-refinery-dock-maintenance-and-pile">https://www.fisheries.noaa.gov/action/incidental-take-authorization-phillips-66-cos-ferndale-refinery-dock-maintenance-and-pile</a>. In case of problems accessing these documents,
please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Jennifer Gatzke, Office of Protected
Resources, NMFS, (301) 427-8401.
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 monitoring and
reporting of the takings. The definitions of all applicable MMPA
statutory terms cited above are included in the relevant sections
below.
Summary of Request
On February 29, 2024 we received a request from Phillips 66 for an
IHA to take marine mammals incidental to Ferndale Refinery Dock
Maintenance and Pile Replacement Activities in Ferndale, Washington.
Following NMFS' review of the application, Phillips 66 submitted
revised versions on May 16 and May 20, 2024. The application was deemed
adequate and complete on May 21, 2024. Phillips 66 has requested
authorization of take by Level B harassment for harbor seal, California
sea lion, Steller sea lion and harbor porpoise. Neither Phillips 66 nor
NMFS expect serious injury or mortality to result from this activity
and, therefore, an IHA is appropriate. There are no changes from the
proposed authorization to the final authorization.
Description of the Specified Activity
Phillips 66 is planning to modernize the existing timber loading
dock (on the southeastern shoreline of the Strait of Georgia in
Ferndale, Washington) and replace it with a stronger structure that
meets current industry best practices. The activity includes
installation of steel piles by vibratory driving, and pile removal
using an underwater chainsaw or cutting torch.
In-water pile installation construction will occur for 35 days,
which will occur intermittently through approximately October 31, 2024.
Take of marine mammals is anticipated to occur due to vibratory pile
installation. Removal of all piles is expected to take up to 66 days
for underwater pile cutting with a chainsaw. Take of marine mammals is
not anticipated to occur due to pile removal.
This IHA is valid for a period of 1 year from the date of issuance.
Due to in-water work timing restrictions to protect Endangered Species
Act (ESA)-listed salmonids, all planned in-water construction in this
area is limited to a work window beginning August 1 and ending February
1. However, since the Strait of Georgia is a very large water body with
a long fetch, calm in-water work conditions are typically only
available from August to the end of October. Pile removal processes are
less dependent on good weather, and this portion of the project may
occur from approximately August 1 to February 1. Therefore, Phillips 66
expects that in-water pile installation construction work will occur
through October 31, 2024. Pile driving is anticipated to take up to 35
days to complete. Work may occur on nonconsecutive days due to weather
and other project needs. Pile driving will be completed intermittently
throughout daylight hours.
A detailed description of the planned dock maintenance and pile
replacement project is provided in the Federal Register notice for the
proposed IHA (89
[[Page 66058]]
FR 53046, June 25, 2024). 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 the
description of the specific activity.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Phillips 66 was
published in the Federal Register on June 25, 2024 (89 FR 53046). That
notice described, in detail, Phillips 66's activity, the marine mammal
species that may be affected by the activity, 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. During the 30-day public comment period,
NMFS did not receive any public comments.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions, instead of reprinting the information. Additional
information regarding population trends and threats may be found in
NMFS' Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks for which exposure is expected
for this activity and summarizes information related to the population
or stock, including regulatory status under the MMPA and 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 proposed to be authorized here, PBR and
annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species or
stocks 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 managed stocks in this region are assessed in
NMFS' Alaska and Pacific SARs. All values presented in table 2 are the
most recent available at the time of publication (including from the
draft 2023 SARs) and are available online at: (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>). All species that could potentially occur in
the proposed project area are included in table 2 of the IHA
application. While the gray whale, minke whale, Dall's porpoise, and
the Eastern North Pacific Northern Resident stock of killer whale have
been reported in the area, the temporal and/or spatial occurrence of
these species is such that take is not expected to occur, and they are
not discussed further beyond the explanation provided in the Federal
Register Notice for the proposed IHA (89 FR 53046, June 25, 2024).
Table 2--Species for Which Take Could Occur in the Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stock abundance
ESA/MMPA status; (CV, Nmin, most Annual M/SI3
Common name Scientific name Stock Strategic (Y/N) \1\ recent abundance PBR \3\
survey) \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae
(rorquals):
Humpback Whale............... Megaptera Central America/ E, D, Y............. 1,494 (0.171, 3.5 14.9
novaeangliae. Southern Mexico--CA/ 1,284, 2021).
OR/WA.
Humpback Whale............... Megaptera Mainland Mexico--CA/ T, D, Y............. 3,477 (0.101, 43 22
novaeangliae. OR/WA. 3,185, 2018).
Humpback Whale............... Megaptera Hawaii.............. -, -, N............. 11,278 (0.56, 127 27.09
novaeangliae. 7,265, 2020).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Killer Whale................. Orcinus orca........ Eastern North E, D, Y............. 73 (N/A, 73, 2022). 0.13 0
Pacific Southern
Resident.
Killer Whale................. Orcinus orca........ West Coast Transient -, -, N............. 349 (N/A, 349, 3.5 0.4
2018).
Family Phocoenidae (porpoises):
Harbor porpoise.............. Phocoena phocoena... Washington Inland -, -, N............. 11,233 (0.37, 66 >=7.2
Waters. 8,308, 2015).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
sea lions):
California Sea Lion.......... Zalophus U.S................. -,-; N.............. 257,606 (N/A, 14,011 >321
californianus. 233,515, 2014).
Steller Sea Lion............. Eumetopias jubatus.. Eastern............. -,-; N.............. 36,308 (N/A, 2,178 93.2
36,308, 2022).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
[[Page 66059]]
Harbor Seal.................. Phoca vitulina...... Washington Northern -, -, N............. 16,451 (0.07, 928 40
Inland Waters. 15,462, 2019).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species follows The Society for Marine Mammalogy's Committee on Taxonomy (<a href="https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://www.marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>). ESA status: Endangered (E), Threatened (T)/MMPA status:
Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic
stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the
ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic
stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a> assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\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, vessel strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
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. 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, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). 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 3.
Table 3--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,
Cephalorhynchid, 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 pinniped (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 et al.,
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 Phillip's 66 dock replacement
activities have the potential to result in behavioral harassment of
marine mammals in the vicinity of the southeastern shores of the Strait
of Georgia, in Puget Sound WA. The notice of proposed IHA (89 FR 53046,
June 25, 2024) included a discussion of the effects of anthropogenic
noise on marine mammals and the potential effects of underwater noise
from vibratory pile driving on marine mammals and their habitat. That
information and analysis is referenced in this final IHA determination
and is not repeated here; please refer to the notice of proposed IHA
(89 FR 53046, June 25, 2024).
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
authorized through the IHA, which informs NMFS' consideration of
``small numbers,'' the negligible impact determinations, and impacts on
subsistence uses.
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 will be by Level B harassment only, as use of the
acoustic stressors (i.e., pile driving) has the potential to result in
disruption of behavioral patterns for individual marine mammals. The
mitigation and monitoring measures are expected to minimize the
severity of the taking to the extent practicable.
[[Page 66060]]
As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
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 take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
will be reasonably expected to be behaviorally harassed (equated to
Level B 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 160 dB (re 1 [mu]Pa) for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g.,
scientific sonar) sources. Generally speaking, Level B harassment take
estimates based on these behavioral harassment thresholds are expected
to include any likely takes by TTS as, in most cases, the likelihood of
TTS occurs at distances from the source less than those at which
behavioral harassment is likely. TTS of a sufficient degree can
manifest as behavioral harassment, as reduced hearing sensitivity and
the potential reduced opportunities to detect important signals
(conspecific communication, predators, prey) may result in changes in
behavior patterns that would not otherwise occur.
The Phillips 66 activity includes the use of continuous sound
sources (vibratory driving), and therefore the RMS SPL threshold of 120
dB re 1 [mu]Pa is applicable.
These thresholds are provided in the table 4 below. The references,
analysis, and methodology used in the development of the thresholds are
described in NMFS' 2018 Technical Guidance, which may be accessed at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
a reference value of 1[mu]Pa\2\s. In this table, thresholds are abbreviated to reflect American National
Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and TL coefficient.
The sound field in the project area is the existing background
noise plus additional construction noise from the project. Marine
mammals are expected to be affected via sound generated by the primary
components of the project (i.e., vibratory pile driving). Additionally,
vessel traffic and other commercial and industrial activities in the
project area may contribute to elevated background noise levels which
may mask sounds produced by the project.
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 * Log<INF>10</INF> (R<INF>1</INF>/R<INF>2</INF>),
[[Page 66061]]
Where:
TL = transmission loss in dB
B = transmission loss coefficient
R<INF>1</INF> = the distance of the modeled SPL from the driven
pile, and
R<INF>2</INF> = the distance from the driven pile of the initial
measurement
This formula neglects loss due to scattering and absorption, which
is assumed to be zero here. The degree to which underwater sound
propagates away from a sound source is dependent on a variety of
factors, most notably the water bathymetry and presence or absence of
reflective or absorptive conditions including in-water structures and
sediments. Spherical spreading occurs in a perfectly unobstructed
(free-field) environment not limited by depth or water surface,
resulting in a 6-dB reduction in sound level for each doubling of
distance from the source (20*log[range]). Cylindrical spreading occurs
in an environment in which sound propagation is bounded by the water
surface and sea bottom, resulting in a reduction of 3 dB in sound level
for each doubling of distance from the source (10*log[range]). A
practical spreading value of 15 is often used under conditions, such as
the project site, where water increases with depth as the receiver
moves away from the shoreline, resulting in an expected propagation
environment that would lie between spherical and cylindrical spreading
loss conditions. Practical spreading loss is assumed here.
The intensity of pile driving sounds is greatly influenced by
factors such as the type of piles, hammers, and the physical
environment in which the activity takes place. In order to calculate
the distances to the Level B harassment sound thresholds for the method
and piles being used in this project, NMFS used acoustic monitoring
data from other locations to develop proxy source levels for the
various pile types, sizes and methods. The project includes vibratory
pile installation of 20-in steel piles. Source levels for the pile size
and driving method are presented in table 5. The closest representative
pile size for reference sound levels was 24-inch piles (WSDOT 2020).
Table 5--Proxy Sound Source Levels for Pile Sizes and Driving Methods
----------------------------------------------------------------------------------------------------------------
Noise level
Equipment used --------------------------------------------------- Distance from
dB Peak dB rms dB SEL (m) measurement
----------------------------------------------------------------------------------------------------------------
Vibratory pile driving 24-inch steel piles 181 153 ............... 10
\1\........................................
----------------------------------------------------------------------------------------------------------------
\1\ Caltrans 2020.
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 impact or vibratory pile driving and
removal, the optional User Spreadsheet tool predicts the distance at
which, if a marine mammal remained at that distance for the duration of
the activity, it would be expected to incur PTS. Inputs used for impact
driving in the optional NMFS User Spreadsheet tool, and the resulting
estimated isopleths, are reported below in table 6 and table 7 below.
Table 6--User Spreadsheet Inputs for Level A Harassment Isopleths
------------------------------------------------------------------------
20-in Steel vibratory
Inputs installation
------------------------------------------------------------------------
Spreadsheet Tab Used...................... Vibratory Pile Driving
(STATIONARY: Non-impulsive,
Continuous)
Source Level (Single Strike/shot SEL)..... ............................
Peak...................................... ............................
RMS....................................... 153
Weighting Factor Adjustment (kHz)......... 2.5
Strikes per pile.......................... ............................
Piles Per day............................. 16
Propagation (xLogR)....................... 15
Duration.................................. 15
Distance of source level measurement 10
(meters)+................................
------------------------------------------------------------------------
[[Page 66062]]
Table 7--Calculated Level A and Level B Harassment Isopleths (m) and Ensonified Areas
[km\2\ in parentheses]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A pinnipeds Level A cetaceans
Pile size/type -------------------------------------------------------------------------------- Level B
Harbor seal Sea lions LF MF HF
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory Installation 120 dB
threshold
--------------------------------------------------------------------------------------------------------------------------------------------------------
20-in steel............................................. 3.1 (.003) <1 (.000) 5 (.005) <1 (.000) 7.5 (.007) 1585 (1.5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The Level A harassment isopleths associated with vibratory installation are all below the minimum shutdown zone and result in very small ensonified
areas. Therefore they are not provided in this table but will be included in the following calculated take tables.
Marine Mammal Occurrence and Take Estimation
In this section we provide information about the occurrence of
marine mammals, including density or other relevant information which
will inform the take calculations. The primary source for density
estimates is from the Navy Marine Species Density Database (NMSDD)
Phase III for the Northwest Training and Testing Study Area (Navy,
2019). These density estimates are shown in table 8 and will be used to
calculate take due to the lack of site-specific data that is available.
To quantitatively assess potential exposure of marine mammals to
noise levels from pile driving over the NMFS threshold guidance, the
following equation was first used to provide an estimate of potential
exposures within estimated harassment zones:
Exposure estimate = N x harassment zone (km\2\) x maximum days of pile
driving
where
N = density estimate (animals per km\2\) used for each species.
Table 8--Marine Mammal Species Densities Used for Exposure Calculations
------------------------------------------------------------------------
Density
Species Region characterized (Animals/km\2\)
------------------------------------------------------------------------
Humpback Whale................ North Puget Sound/San 0.0027
Juan Islands (Fall
and Winter).
Killer Whale (Southern North Puget Sound/San 0.0078
Resident). Juan Islands (Fall
and Winter).
Killer Whale (Transient)...... North Puget Sound/San 0.0031
Juan Islands (Fall
and Winter).
Harbor Porpoise............... North Puget Sound..... 2.16
Steller Sea Lion.............. North Puget Sound/San 0.0027
Juan Islands (Fall).
California Sea Lion........... North Puget Sound/San 0.0179
Juan Islands (Fall).
Harbor Seal................... North Puget Sound/San 0.76
Juan Islands (Fall).
------------------------------------------------------------------------
Source: Navy 2019.
Potential Level A harassment zones were all calculated to less than
10 meters. As seen from table 7, marine mammals will have to be very
close to the vibratory driving activity to be within the estimated
Level A harassment zone. Marine mammal monitors will be in place,
closely monitoring this zone and stopping work before any marine mammal
gets near the largest Level A harassment zone of 6.2m from the project
source. Based on the estimated Level A harassment zones, and density-
based calculations for all species, no take by Level A Harassment was
estimated (all less than 1.0). Harbor porpoise is the species with the
highest density at 2.16 per km, multiplied by the Level A harassment
zone of .007 km (table 7), and 35 days of work yields 0.53 individuals
exposed to Level A harassment. Therefore, when considered in context of
planned mitigation, no take by Level A harassment is expected. Table 9
below shows the total calculated take by Level B harassment over the 35
in-water work days planned for the Phillips 66 activity resulting in
total calculated take.
Table 9--Calculated and Requested Take by Level B Harassment From
Vibratory Pile Installation
------------------------------------------------------------------------
35 Days of 20-inch pile installation by vibratory hammer
-------------------------------------------------------------------------
Level B
Total Level B harassment
Species harassment proposed for
calculated authorization
------------------------------------------------------------------------
Harbor Porpoise................... 447 447
Steller Sea Lion.................. 1 35
California Sea Lion............... 4 105
Harbor Seal....................... 157 157
------------------------------------------------------------------------
Humpback Whale
Humpback whales are an uncommon occurrence near the project area
but they do have the potential to be in the area as they migrate to
feeding grounds to the north and mating grounds far south. Based on
best available density estimates, Phillips 66 has calculated the
potential take of one humpback whale, by Level B harassment only.
However, Phillips 66 proposes to shut down whenever humpback whales
approach
[[Page 66063]]
the Level B harassment zone. Given the low density of humpback whales
in the project area, the ability to detect the whales visually from a
considerable distance, the capacity to track whales through the Orca
Network, and the anticipated efficacy of mitigation and monitoring
measures, Phillips 66 determined that no take of humpback whales is
likely to occur and did not request that any such take be authorized.
NMFS concurs with this request and, therefore, has not authorized take
of humpback whales.
Killer Whales
Both SRKW and transient killer whales could potentially occur near
the project area. Based on best available density estimates, Phillips
66 has calculated that up to two SRKWs and one transient whale could be
taken, by Level B harassment only. Even though the project site is
located in summer core area critical habitat, and the project may begin
August 1, the southeastern corner of the Strait of Georgia (where the
project is located) is not a location where SRKW are commonly sighted.
According to the monthly ORCA network reports of September through
October, from 2016-2023, the occurrence of killer whales from any stock
was uncommon in the southeastern corner of the Strait of Georgia. When
compared to transient killer whales, sightings of SRKWs were far less
prevalent (ORCA 2024). Mitigation requires that pile driving activity
shut down whenever a killer whale from any stock is observed
approaching a harassment zone. Given the ability to visually detect
killer whales from proposed PSO locations (including boats), the
capacity to track this species through contact with the ORCA Network,
and the expected efficacy of mitigation and monitoring measures,
Phillips 66 elected to not request take. Due to the expansive range of
SRKWs; the relatively small area of their habitat that may be affected
by the project; the ready availability of habitat of similar or higher
value, and the short-term nature of installation construction (35
days), Phillips 66 determined that no take of killer whales is likely
to occur and did not request that any such take be authorized. NMFS
concurs with this request and, therefore, has not authorized take of
killer whales.
Steller Sea Lion
Calculated take based upon the species density in the Strait of
Georgia yielded one potential take by Level B harassment during the 35
days of in-water pile driving work. While there are no known nearby
haulouts, there are haulouts in the greater Strait of Georgia. Phillips
66 determined, based on anecdotal sightings at the facility, that the
calculated value was too low. In addition, this species is known to
travel significant distances in search for prey, possibly into the
surrounding marine waters of the Cherry Point Aquatic Reserve.
NMFS reviewed other IHA monitoring reports from Puget Sound and
found that the Seattle Pier 63 construction project (87 FR 31985, May
26, 2022) reported a maximum of one animal present per day over 17 in-
water work days between October 12 and November 30, 2022. Therefore,
NMFS assumes a similar rate of occurrence and has authorized 35 (one/
day) takes of Steller sea lion by Level B harassment.
California Sea Lion
Calculated take based upon the species density in the Strait of
Georgia found 4 potential takes by Level B harassment during the 35
days of pile driving work at the Phillips 66 dock. While there are no
known nearby haulouts, there are haulouts in the greater Strait of
Georgia. Phillips 66 determined, based on anecdotal sightings at the
facility, that the calculated value was too low. In addition, this
species is known to travel significant distances in search for prey,
possibly into the surrounding marine waters of the Cherry Point Aquatic
Reserve.
NMFS reviewed other IHA monitoring reports from Puget Sound and
found that the Seattle Pier 63 construction project (87 FR 31985, May
26, 2022) reported a maximum of three California sea lions present per
day over 17 in-water work days between October 12 and November 30,
2022. Therefore, NMFS assumes a similar rate of occurrence and has
authorized 105 (three/day) takes of California sea lions by Level B
Harassment.
Details of takes by Level B harassment as a percentage of stocks
are shown in table 10.
Table 10--Authorized Take of Marine Mammals by Level B Harassment by Species, Stock, and Percent of Take by
Stock
----------------------------------------------------------------------------------------------------------------
Authorized take
Common name Stock Stock abundance Total authorized as percentage of
take stock
----------------------------------------------------------------------------------------------------------------
Harbor porpoise.................. Washington Inland 11,233 447 3.97
Waters.
Steller sea lion................. Eastern U.S......... 36,308 35 0.10
California sea lion.............. U.S................. 257,606 105 0.04
Harbor seal...................... Washington Northern 16,451 157 0.95
Inland.
----------------------------------------------------------------------------------------------------------------
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. 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
[[Page 66064]]
implemented as planned), the likelihood of effective implementation
(probability implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations.
Pre-start Clearance Monitoring--Prior to the start of daily in-
water construction activity, or whenever a break in pile driving/
removal of 30 minutes or longer occurs, PSOs would observe the shutdown
and monitoring zones for a period of 30 minutes. The shutdown zone
would be considered cleared when a marine mammal has not been observed
within the zone for that 30-minute period. If a marine mammal is
observed within the shutdown zone, a soft-start (discussed below)
cannot proceed until the animal has left the zone or has not been
observed for 15 minutes. If the monitoring zone has been observed for
30 minutes and marine mammals are not present within the zone, soft-
start procedures can commence and work can continue. Pre-start
clearance monitoring must be conducted during periods of visibility
sufficient for the lead PSO to determine that the shutdown zones,
indicated in table 11, are clear of marine mammals. Pile driving may
commence following 30 minutes of observation, when the determination is
made that the shutdown zones are clear of marine mammals. If work
ceases for more than 30 minutes, the pre-activity monitoring of both
the monitoring zone and shutdown zone would commence.
Implementation of Shutdown Zones--For all pile driving activities,
Phillips 66 would implement shutdowns within designated zones. The
purpose of a shutdown zone is generally to define an area within which
shutdown of activity would occur upon sighting of a marine mammal (or
in anticipation of an animal entering the defined area). Implementation
of shutdowns would be used to avoid takes by Level A harassment from
vibratory pile driving for all four species for which take may occur.
A minimum shutdown zone of 10 m would be required for all in-water
construction activities to avoid physical interaction with marine
mammals. Proposed shutdown and monitoring zones for each activity type
are shown in table 11.
Table 11--Shutdown Zones During Pile Installation and Removal
[m]
----------------------------------------------------------------------------------------------------------------
Shutdown zones
Pile size/type ------------------------------------------------------------ Level B harassment
HF Phocid Otariid monitoring zone
----------------------------------------------------------------------------------------------------------------
20-in steel Vibratory........... 10 10 10 1,585
----------------------------------------------------------------------------------------------------------------
All marine mammals would be monitored in the Level B harassment
zones and throughout the area as far as visual monitoring can take
place. If one of the four species of marine mammal for which take would
be authorized enters the Level B harassment zone, in-water activities
would continue and PSOs would document the animal's presence within the
estimated harassment zone.
If a species for which authorization has not been granted, or a
species which has been granted but the authorized takes are met, is
observed approaching or within the Level B harassment zone, pile
driving activities will be shut down immediately. Activities will not
resume until the animal has been confirmed to have left the area or 15
minutes has elapsed with no sighting of the animal.
Coordination with Local Marine Mammal Research Network--Prior to
the start of pile driving for the day the PSOs would contact the Orca
Network to find out the location of the nearest sightings of any killer
whales or humpback whales. Phillips 66 must delay or halt pile driving
activities if any killer whales or humpback whales are sighted within
the vicinity of the project area and are approaching the Level B
harassment zones (table 11) during in-water activities. Finally, if a
SRKW, unidentified killer whale, or humpback whale enters the Level B
harassment zone undetected, in-water pile driving must be suspended
immediately upon detection and must not resume until the animal exits
the Level B harassment zone or 15 minutes have passed without re-
detection of the animal.
Based on our evaluation of the applicant's proposed measures, NMFS
has determined that these 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.
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 activity; 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
[[Page 66065]]
physical components of marine mammal habitat); and,
<bullet> Mitigation and monitoring effectiveness.
Visual Monitoring
Monitoring shall be conducted by NMFS-approved observers. Trained
observers shall be placed from the best vantage point(s) practicable to
monitor for marine mammals and implement shutdown or delay procedures
when applicable through communication with the equipment operator.
Observer training must be provided prior to project start, and shall
include instruction on species identification (sufficient to
distinguish the species in the project area), description and
categorization of observed behaviors and interpretation of behaviors
that may be construed as being reactions to the specified activity,
proper completion of data forms, and other basic components of
biological monitoring, including tracking of observed animals or groups
of animals such that repeat sound exposures may be attributed to
individuals (to the extent possible).
Monitoring would be conducted 30 minutes before, during, and 30
minutes after pile driving activities. In addition, observers shall
record all incidents of marine mammal occurrence, regardless of
distance from activity, and shall document any behavioral reactions in
concert with distance from piles being driven. 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.
A minimum of two PSOs would be on duty during all in-water pile
driving activities. One `shore-based' observer will be stationed at
locations offering best line of sight views to monitor the entirety of
the shutdown zones and provide the most complete coverage of the
monitoring zones. Additionally, Phillips 66 proposes to deploy one
boat-based PSO that will be positioned at a location or moving in a
pattern that offers the most complete visual coverage of the monitoring
zone. Note, however, PSO position(s) may vary based on construction
activity and location of piles or equipment.
PSOs would scan the waters using binoculars and would use a
handheld range-finder device to verify the distance to each sighting
from the project site. All PSOs would be trained in marine mammal
identification and behaviors and are required to have no other project-
related tasks while conducting monitoring. In addition, monitoring
would be conducted by qualified observers, who would be placed at the
best vantage point(s) practicable to monitor for marine mammals and
implement shutdown/delay procedures when applicable by calling for the
shutdown to the hammer operator via a radio. Phillips 66 would adhere
to the following observer qualifications:
(i) PSOs must be independent of the activity contractor (for
example, employed by a subcontractor) and have no other assigned tasks
during monitoring periods,
(ii) 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,
(iii) Other PSOs may substitute other relevant experience,
education (degree in biological science or related field), or training
for prior experience performing the duties of a PSO during construction
activity pursuant to a NMFS-issued incidental take authorization,
(iv) Where a team of three or more PSOs is required, a lead
observer or monitoring coordinator must be designated. The lead
observer must have prior experience performing the duties of a PSO
during construction activity pursuant to a NMFS-issued incidental take
authorization,
(v) PSOs must be approved by NMFS prior to beginning any activity
subject to this IHA.
Additional standard observer qualifications include:
<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 and times when in-water construction
activities were suspended to avoid potential incidental injury from
construction sound of marine mammals observed within a defined shutdown
zone; 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.
Reporting
A draft marine mammal monitoring report would be submitted to NMFS
within 90 days after the completion of pile driving and removal
activities. It would 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 the number and type of piles driven or
removed and by what method, and the total equipment duration or total
number of minutes for each pile (vibratory driving),
<bullet> PSO locations during marine mammal monitoring,
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance,
<bullet> Upon observation of a marine mammal, the following
information: Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting; Time of sighting; 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; Distance and bearing of each
marine mammal observed relative to the pile being driven for each
sighting (if pile driving was occurring at time of sighting); Estimated
number of animals (min/max/best estimate); Estimated number of animals
by cohort (adults, juveniles, neonates, group composition, etc.);
Animal's closest point of approach and estimated time spent within the
harassment zone; and 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
zone, by species,
<bullet> Detailed information about any implementation of any
mitigation triggered (e.g., shutdowns and delays), a description of
specific actions that ensued, and resulting changes in behavior of the
animal(s), if any.
[[Page 66066]]
If no comments are received from NMFS within 30 days, the draft
final report will constitute the final report. If comments are
received, a final report addressing NMFS comments must be submitted
within 30 days after receipt of comments.
Reporting Injured or Dead Marine Mammals
In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by the IHA
(if issued), such as an injury, serious injury or mortality, Phillips
66 would immediately cease the specified activities and report the
incident to the Office of Protected Resources, NMFS, and the West Coast
Region regional stranding coordinator. The report will include the
following information:
<bullet> Description of the incident;
<bullet> Environmental conditions (e.g., Beaufort sea state,
visibility);
<bullet> Description of all marine mammal observations in the 24
hours preceding the incident;
<bullet> Species identification or description of the animal(s)
involved;
<bullet> Fate of the animal(s); and
<bullet> Photographs or video footage of the animal(s) (if
equipment is available).
Activities will not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS would work with Phillips 66
to determine what is necessary to minimize the likelihood of further
prohibited take and ensure MMPA compliance. Phillips 66 will not be
able to resume their activities until notified by NMFS.
In the event that Phillips 66 discovers an injured or dead marine
mammal, and the lead PSO determines that the cause of the injury or
death is unknown and the death is relatively recent (e.g., in less than
a moderate state of decomposition as described in the next paragraph),
Phillips 66 will immediately report the incident to the Office of
Protected Resources (<a href="/cdn-cgi/l/email-protection#1343413d5a47433d5e7c7d7a677c617a7d744176637c616760537d7c72723d747c65"><span class="__cf_email__" data-cfemail="fdadafd3b4a9add3b092939489928f94939aaf988d928f898ebd93929c9cd39a928b">[email protected]</span></a>), NMFS and to
the West Coast Region regional stranding coordinator as soon as
feasible. The report will include the same information identified in
the paragraph above. Activities will be able to continue while NMFS
reviews the circumstances of the incident. NMFS will work with Phillips
66 to determine whether modifications in the activities are
appropriate.
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).
To avoid repetition, the majority of our analysis applies to all
the species listed in table 9, given that many of the anticipated
effects of this project on different marine mammal stocks are expected
to be relatively similar in nature. Where there are meaningful
differences between species or stocks, or groups of species, in
anticipated individual responses to activities, impact of expected take
on the population due to differences in population status, or impacts
on habitat, they are described independently in the analysis below.
Pile driving activities associated with the project as outlined
previously, have the potential to disturb or displace marine mammals.
Specifically, the specified activities may result in take, in the form
of Level B harassment from underwater sounds generated from pile
driving. Potential takes could occur if individuals of these species
are present in zones ensonified above the thresholds for Level B
harassment identified above when these activities are underway.
Take by Level B harassment would be due to potential behavioral
disturbance, and TTS. No serious injury or mortality is anticipated or
authorized given the nature of the activity 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 planned mitigation measures (see Mitigation
section).
Based on reports in the literature as well as monitoring from other
similar activities, behavioral disturbance (i.e., Level B harassment)
would likely be limited to reactions such as increased swimming speeds,
increased surfacing time, or decreased foraging (if such activity were
occurring) (e.g., Thorson and Reyff, 2006; HDR, Inc., 2012; Lerma,
2014). Most likely for pile driving, individuals would simply move away
from the sound source and be temporarily displaced from the areas of
pile driving, although even this reaction has been observed primarily
only in association with impact pile driving. The pile driving
activities analyzed here are similar to, or less impactful than,
numerous other construction activities conducted in Washington, which
have taken place with no observed severe responses of any individuals
or known long-term adverse consequences. The impact of Level B
harassment takes on the affected individuals will be minimized through
use of mitigation measures described herein and, if sound produced by
project activities is sufficiently disturbing, animals are likely to
simply avoid the area while the activity is occurring. The project site
itself is frequented by large tankers every few days, but the majority
of sound fields produced by the specified activities are relatively
close to the dock. Animals disturbed by project sound will be expected
to avoid the area and use nearby higher-quality habitats.
The project also is not expected to have significant adverse
effects on affected marine mammals' habitat. The project activities
will not modify existing marine mammal habitat for a significant amount
of time. The activities may cause some fish or invertebrates 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 intermittent driving schedule (35 in-water work days
between August 1 and October 31, 2024); short duration of the
activities (no more than 4 hours per day vibratory driving); the
relatively small area of the habitat that may be affected; and the
availability of nearby habitat of similar or higher value, the impacts
to marine mammal habitat are not
[[Page 66067]]
expected to cause significant or long-term negative consequences.
While there are haulouts for pinnipeds in the area, these locations
are some distance from the actual project site. There are two
documented California sea lion haulouts in the southern Strait of
Georgia, both on the western coast of the Strait in British Columbia.
The closest haulout in near Tumbo Island on the eastern edge of the
Gulf Island, over 15 miles from the project site. The closest
documented Steller sea lion haulout location is over 10 miles from the
project site, on Sucia Island (Jeffries et al., 2000). The closest
documented harbor seal haulouts are two different low population (>100
individuals) locations approximately 5 miles from the project site, one
to the north and one to the south (Jeffries et al., 2000). To the
southwest and west of the project location are 14 other haulouts dotted
throughout a few of the small northern San Juan Islands (North of Orcas
Island) within 10 miles of the project (Jeffries et al., 2000).
While repeated exposures of individuals to this pile driving
activity could cause limited Level B harassment in harbor seals, harbor
porpoises, and sea lions, they are unlikely to considerably disrupt
foraging behavior or result in significant decrease in fitness,
reproduction, or survival for the affected individuals.
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 serious injury or mortality is anticipated or
authorized;
<bullet> The anticipated incidents of Level B harassment would
consist of, at worst, temporary modifications in behavior that would
not result in fitness impacts to individuals;
<bullet> The ensonifed area from the project is very small relative
to the overall habitat ranges of all species and stocks, and no habitat
of particular importance would be impacted;
<bullet> Repeated exposures of marine mammals to this pile driving
activity could cause Level B harassment in seals, harbor porpoise and
sea lion species, but are unlikely to considerably disrupt foraging
behavior or result in significant decrease in fitness, reproduction, or
survival for the affected individuals. In all, there would be no
adverse impacts to the stocks as a whole; and
<bullet> The mitigation measures are expected to reduce the effects
of the specified activity by minimizing the intensity and/or duration
of harassment events.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
the proposed activity will have a negligible impact on all affected
marine mammal species or stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
Table 8 demonstrates the number of instances in which individuals
of a given species could be exposed to received noise levels that could
cause take of marine mammals. Our analysis shows that the total taking
authorized is less than 4 percent of the best available population
abundance estimate for all species.
Based on the analysis contained herein of the activity (including
the mitigation and monitoring measures) and the anticipated take of
marine mammals, NMFS finds that small numbers of marine mammals would
be taken, relative to the population size of the affected species or
stocks.
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 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.
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)
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 NAO 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 IHA qualifies to be categorically excluded from further
NEPA review.
Authorization
NMFS has issued an IHA to Phillips 66 for the potential harassment
of small numbers of 4 marine mammal species incidental to the Ferndale
Refinery Dock Replacement in-water pile driving activities in Ferndale
Washington, that includes the previously explained mitigation,
monitoring and reporting requirements.
Dated: August 9, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-18146 Filed 8-13-24; 8:45 am]
BILLING CODE 3510-22-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on August 14, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.