Notice2024-21287
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Washington State Department of Transportation's Seattle Slip 3 Vehicle Transfer Span Project in Washington State
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 19, 2024
Effective
September 12, 2024
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 Washington State Department of Transportation (WSDOT) to incidentally harass marine mammals during construction activities associated with the Seattle Slip 3 Vehicle Transfer Span (VTS) Replacement Project in Seattle, Washington.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 182 (Thursday, September 19, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 182 (Thursday, September 19, 2024)]
[Notices]
[Pages 76804-76818]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-21287]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE272]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Washington State Department of
Transportation's Seattle Slip 3 Vehicle Transfer Span Project in
Washington State
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
Washington State Department of Transportation (WSDOT) to incidentally
harass marine mammals during construction activities associated with
the Seattle Slip 3 Vehicle Transfer Span (VTS) Replacement Project in
Seattle, Washington.
DATES: This authorization is effective from September 12, 2024 through
September 11, 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/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>. In case of problems accessing these documents, please call
the contact listed below.
FOR FURTHER INFORMATION CONTACT: Austin Demarest, 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 promulgated 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 the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation measures''). NMFS must also prescribe requirements
pertaining to monitoring and reporting of such takings. The definition
of key terms such as ``take,'' ``harassment,'' and ``negligible
impact'' can be found in the MMPA and NMFS's implementing regulations
(see 16 U.S.C. 1362; 50 CFR 216.103).The definitions of all applicable
MMPA statutory terms cited above are included in the relevant sections
below.
Summary of Request
On December 19, 2023, NMFS received a request from WSDOT for an IHA
to take marine mammals incidental to Seattle Slip 3 VTS Replacement
Project in Elliott Bay of the Puget Sound, Seattle, WA. Following NMFS'
review of the application, WSDOT submitted revised versions on March 4,
April 8, April 18, and April 29, 2024. A final revised monitoring plan
was submitted on May 14, 2024 and a final revised application was
submitted on May 16, 2024. The application was deemed adequate and
complete on May 20, 2024. WSDOT's request is for take of 12 species of
marine mammals, by Level B harassment only. The proposed IHA was
published for public comment on July 30, 2024 (89 FR 61064). Neither
WSDOT nor NMFS expect serious injury or mortality to result from this
activity and, therefore, an IHA is appropriate.
[[Page 76805]]
Description of the Specified Activity and Anticipated Impacts
Overview
WSDOT plans to replace the Seattle Slip 3 VTS at Colman Dock which
is located in Elliott Bay of the Puget Sound in Seattle, Washington.
The purpose of the construction project is to preserve the
transportation function of an aging, seismically deficient transfer
span. The existing VTS will be removed and replaced with a hydraulic
transfer span consisting of steel drilled shafts and a new steel
wingwall. In-water construction includes cutting sheet piles,
installation and removal of steel piles with a vibratory hammer, and
proofing steel piles with an impact hammer to drive them to the maximum
depth and ensure load bearing capacity. In-water pile removal and
driving with vibratory and impact hammers may result in incidental take
by Level B harassment of 12 marine mammal species within Elliott Bay
and the Central Puget Sound.
A detailed description of the planned construction project is
provided in the Federal Register notice for the proposed IHA (89 FR
61064, July 30, 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 WSDOT was published
in the Federal Register on July, 30 2024 (89 FR 61064). That notice
described, in detail, WSDOT'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 analysis, the proposed
authorization, and any other aspect of the notice of the proposed IHA,
and requested that interested persons submit relevant information,
suggestions, and comments. During the 30-day public comment period,
NMFS received a total of three public comment letters. Two of these
were from Federal agencies stating simply that they had no comments,
and the other comment letter was from a private citizen.
The only substantive comment and NMFS' response is provided below,
and all public comment letters are available online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-washington-department-transportations-seattle-slip-3-vehicle">https://www.fisheries.noaa.gov/action/incidental-take-authorization-washington-department-transportations-seattle-slip-3-vehicle</a>.
Comment: One commenter presented a suggestion regarding protected
species observer (PSO) monitoring coverage from the Seattle-Bainbridge
Island ferries during the vibratory installation of 24, 30, and 78-in
steel pipe piles, stating that there are instances when only one
Seattle-Bainbridge Island ferry is operating due to scheduling issues,
insufficient staffing, or boat mechanical issues which necessitate
additional PSO coverage at those times. The commenter suggested adding
an alternate monitoring location for the second ferry based PSO if any
of these operational issues occurred.
Response: NMFS agrees with the commenter's concern and added an
alternate location for the second ferry based PSO to monitor from if
there are delays or only one ferry is operational during the
installation of the 24, 30 and 78-in pipe piles. NMFS refers the
commenter to the Monitoring and Reporting section below and the
Monitoring Requirements section of the final issued IHA.
Changes From the Proposed IHA to Final IHA
In the Monitoring and Reporting section of the proposed IHA Federal
Register notice (89 FR 61064, July 30, 2024) one PSO was required to be
stationed on each Seattle-Bainbridge Island ferry during the vibratory
installation of 24, 30, and 78-in steel pipe piles. An alternate
monitoring location for the second ferry stationed PSO was added to the
Monitoring and Reporting section of this notice for instances when
there are ferry delays or only one ferry is operational. Figure 2 was
added as a spatial reference for the alternate monitoring location.
These changes have also been added to the Monitoring Requirements
section of the final issued IHA.
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 1 lists all species or stocks for which take is expected and
authorized for this activity and summarizes information related to the
population or stock, including regulatory status under the MMPA and
Endangered Species Act (ESA) and potential biological removal (PBR),
where known. PBR is defined by the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (as described in NMFS' SARs). While no
serious injury or mortality is anticipated or authorized here, PBR and
annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species 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. Survey abundance (as compared to stock or species
abundance) is the total number of individuals estimated within the
survey area, which may or may not align completely with a stock's
geographic range as defined in the SARs. For some species, this
geographic area or surveys may extend beyond U.S. waters. All managed
stocks in this region are assessed in NMFS' U.S. Pacific and Alaska
SARs. All values presented in table 1 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-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.
[[Page 76806]]
Table 1--Marine Mammal Species \1\ Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock Strategic (Y/N) Nmin, most recent PBR Annual M/
\2\ abundance survey) \3\ SI \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale...................... Eschrichtius robustus.. Eastern N Pacific...... -, -, N 26,960 (0.05, 25,849, 801 131
2016).
Minke whale..................... Balaenoptera CA/OR/WA............... -, -, N 915 (0.792, 509, 2018) 4.1 0.19
acutorostrata.
-------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
Killer whale \5\................ Orcinus orca........... West Coast Transient... -, -, N 349 (N/A, 349, 2018).. 3.5 0.4
Bottlenose dolphin.............. Tursiops truncatus..... CA/OR/WA offshore...... -, -, N 3,477 (0.696, 2,048, 19.70 >=0.82
2018).
Long beaked common dolphin...... Delphinus capensis..... CA..................... -, -, N 83,379 (0.216, 69,636, 668 >=29.7
2018).
Pacific white-sided Dolphin..... Lagenorhynchus CA/OR/WA............... -, -, N 34,999 (0.222, 29,090, 279 7
obliquidens. 2018).
Family Phocoenidae (porpoises):
Dall's porpoise................. Phocoenoides dalli..... CA/OR/WA............... -, -, N 16,498 (0.61, 10,286, 99 >=0.66
2018).
Harbor porpoise................. Phocoena phocoena...... Washington Inland -, -, N 11,233 (0.37, 8,308, 66 >=7.2
Waters. 2015).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
sea lions):
CA sea lion..................... Zalophus californianus. U.S.................... -, -, N 257,606 (N/A, 233,515, 14,011 >321
2014).
Steller sea lion \6\............ Eumetopias jubatus..... Eastern................ -, -, N 36,308 (N/A, 36,308, 2,178 93.2
2022).
Family Phocidae (earless seals):....
Harbor seal..................... Phoca vitulina......... Washington Northern -, -, N 16,451 (0.07, 15,462, 928 40
Inland Waters. 2019).
Northern elephant seal \7\...... Mirounga angustirostris CA Breeding............ -, -, N 187,386 (N/A, 85,369, 5,122 13.7
2013).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>).
\2\ 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.
\3\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.
\5\ Nest is based upon count of individuals identified from photo-ID catalogs in analysis of a subset of data from 1958-2018.
\6\ Nest is best estimate of counts, which have not been corrected for animals at sea during abundance surveys. Estimates provided are for the U.S.
only.
\7\ There is uncertainty in available population estimates due to limited surveys, limited reproductive data, and uncertainty in stock relationships and
harvest statistics.
As indicated above, all 12 species in table 1 spatially and
temporally co-occur with the activity to the degree that take is
reasonably likely to occur. A detailed description of the species
likely to be affected by WSDOT's project, including brief introductions
to the species and relevant stocks as well as available information
regarding population trends and threats, and information regarding
local occurrence, were provided in the Federal Register notice for the
proposed IHA (89 FR 61064, July 30, 2024); since that time, we are not
aware of any changes in the status of these species and stocks;
therefore, detailed descriptions are not provided here. Please refer to
that Federal Register notice for these descriptions. Please also refer
to NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for
generalized species accounts.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. 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.). 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 2.
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.
[[Page 76807]]
Table 2--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 (dolphins, 150 Hz to 160 kHz.
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) (true 50 Hz to 86 kHz.
seals).
Otariid pinnipeds (OW) (underwater) (sea 60 Hz to 39 kHz.
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).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from WSDOT's construction
activities have the potential to result in behavioral harassment of
marine mammals in the vicinity of the project area. The notice of
proposed IHA (89 FR 61064, July 30, 2024) included a discussion of the
effects of anthropogenic noise on marine mammals and the potential
effects of underwater noise from WSDOT's construction activity 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 61064, July 30,
2024).
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
authorized through the IHA, which will inform NMFS' consideration of
``small numbers'' and the negligible impact determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes may occur by Level B harassment only, in the form
behavioral reactions and temporary threshold shift (TTS) for individual
marine mammals resulting from exposure to noise from impact and
vibratory pile driving and removal. Based on the nature of the activity
and the anticipated effectiveness of the mitigation measures (i.e.,
shutdown zones at the Level A harassment area) discussed in detail
below in the Mitigation section, Level A harassment is neither
anticipated nor authorized.
As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
information provided above is synthesized to produce a quantitative
estimate of the take that is reasonably like to occur and is
authorized.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas; and, (4) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the authorized take numbers.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur permanent threshold shift (PTS) of some
degree (equated to Level A harassment). Acoustic thresholds used in the
analysis were discussed in detail in the notice of proposed IHA (89 FR
61064, July 30, 2024) and not repeated here. Please see that notice for
additional detail.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
The sound field in the project area is the existing background
noise plus additional construction noise from the construction project.
Marine mammals are expected to be affected by sound generated from the
impact and vibratory pile driving components of this project.
In order to calculate distances to the Level A harassment and Level
B harassment thresholds for the methods and piles used in the project,
NMFS used acoustic monitoring data from previous pile driving at WSDOTs
Bainbridge Island Ferry Terminal Project (vibratory removal of 12-inch
H-piles), Phase 2 of Colman Dock construction for the Seattle
Multimodal Project (impact installation of 24-inch steel piles), and
the Ebey Slough Bridge Replacement Project (72-inch steel piles). Each
of the projects listed above occurred within the Puget Sound and
provided the most suitable source levels due to similar physical
habitat characteristics, pile sizes, and pile driving or removal
methods (table 3).
Source levels from the Bainbridge Terminal Ferry Project and the
Ebey Slough Bridge Replacement Project were used as proxies for the
vibratory removal of 14-inch steel H-piles and the vibratory
installation of 24, 30, and 78-inch steel pipe piles for the project
because source levels for identical pile sizes were unavailable.
Results from the vibratory installation of 72-inch piles at the Ebey
Slough Bridge Replacement Project showed that source levels ranged
between 148 to 166 dB re 1 [micro]Pa at 10 m, therefore 174 dB re 1
[micro]Pa at 10 m, as proposed for use by WSDOT, was used as a
conservative source level estimate for the vibratory installation of
24, 30, and 78-in steel pipe piles (WSDOT 2011). The source level for
14-inch H-piles was assumed to be
[[Page 76808]]
equivalent to the vibratory removal of 12-inch H-piles at the
Bainbridge Island Ferry Terminal where the unweighted RMS SPL source
level was 153 dB re 1 [micro]Pa at 10 m (Laughlin 2019). Bubble
curtains would be employed for impact installation of 24-inch steel
piles but zero dB of effective attenuation is assumed because a bubble
curtain was used at Phase 2 of Colman Dock construction for the Seattle
Multimodal Project, thus source levels would be the same.
Table 3--Seattle Slip 3 Vehicle Transfer Span Proxy Sound Source Levels for Pile Sizes and Driving Methods
----------------------------------------------------------------------------------------------------------------
Source level at 10 m
Pile type and size (in) Method (dB re 1 [micro]PA) Reference
----------------------------------------------------------------------------------------------------------------
14-inch steel H-piles................ Vibratory Removal...... 153 dB rms............. Laughlin (2019).
24-inch steel pipe piles............. Vibratory installation 174 dB rms............. WSDOT (2011).
and removal.
24-inch steel pipe piles............. Impact installation.... 166 SEL, 176 dB rms, Greenbusch Group
194 dB peak. (2019).
30-inch steel sheet piles............ Vibratory installation. 174 dB rms............. WSDOT (2011).
78-inch steel pipe piles............. Vibratory installation. 174 dB rms............. WSDOT (2011).
----------------------------------------------------------------------------------------------------------------
Level B Harassment Zones
Transmission loss (TL) is the decrease in acoustic intensity as an
acoustic pressure wave propagates out from a source. TL parameters vary
with frequency, temperature, sea conditions, current, source and
receiver depth, water depth, water chemistry, and bottom composition
and topography. The general formula for underwater TL is:
TL = B * Log10 (R1/R2)
Where:
TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement
The recommended TL coefficient for most nearshore environments is
the practical spreading value of 15. This value results in an expected
propagation environment that would lie between spherical and
cylindrical spreading loss conditions, which is the most appropriate
assumption for the WSDOTs activities in the absence of specific
modelling. The estimated Level B harassment zones for the WSDOTs
activities are shown in tables 4 and 5.
Level A Harassment Zones
The ensonified area associated with Level A harassment is more
technically challenging to predict due to the need to account for a
duration component. Therefore, NMFS developed an optional user
spreadsheet tool to accompany the Technical Guidance that can be used
to relatively simply predict an isopleth distance for use in
conjunction with marine mammal density or occurrence to help predict
potential takes. We note that because of some of the assumptions
included in the methods underlying this optional tool, we anticipate
that the resulting isopleth estimates are typically going to be
overestimates of some degree, which may result in an overestimate of
potential take by Level A harassment. However, this optional tool
offers the best way to estimate isopleth distances when more
sophisticated modeling methods are not available or practical. For
stationary sources such as pile installation and removal, the 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 in the optional User
Spreadsheet tool (e.g., number of piles per day, during and/or strikes
per pile) are presented in table 1 of the proposed IHA Federal Register
notice (89 FR 61064; July 30, 2024), and the resulting estimated
isopleths and ensonified areas are reported in tables 4 and 5 below.
Table 4--Level A and Level B Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A harassment zone (m)
----------------------------------------------------------- Level B
Pile size and type Pile driving method LF MF HF harassment zone
cetaceans cetaceans cetaceans Phocids Otarids (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-inch steel............................... Vibratory removal............. 3.2 0.3 4.7 1.9 0.1 1,585
24-inch steel............................... Vibratory installation and 65.8 5.8 97.3 40.0 2.8 \a\ 15,410
removal.
24-inch steel............................... Impact installation........... 75.9 2.7 90.4 40.6 3.0 736
30-inch steel............................... Vibratory installation........ 50.2 4.5 74.3 30.5 2.1 \a\ 15,410
78-in steel................................. Vibratory installation........ 50.2 4.5 74.3 30.5 2.1 \a\ 15,410
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Land is reached at a maximum of 15,410 km/9.6 miles.
Table 5--Level A and Level B Ensonified Areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
Level A ensonified area (m\2\)
----------------------------------------------------------- Level B
Pile size and type Pile driving method LF MF HF harassment zone
cetaceans cetaceans cetaceans Phocids Otarids (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-inch steel............................... Vibratory removal............. 8.0 0.07 17.4 2.8 0.007 3,247,392
24-inch steel............................... Vibratory installation and 4,524.5 5.7 6,418 1,294.6 7.07 75,844,286
removal.
24-inch steel............................... Impact installation........... 75.9 2.7 90.4 40.6 3.0 861,188
30-inch steel............................... Vibratory installation........ 1,979.2 15.9 4,336 730.6 3.5 75,844,286
78-inch steel............................... Vibratory Installation........ 1,979.2 15.9 4,336 730.6 3.5 75,844,286
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 76809]]
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 take incidental to WSDOTs pile driving activities for the
Seattle Slip 3 VTS Replacement Project. Throughout this section the
pile installation or removal will be referred to as ``pile driving''
unless specified otherwise. From 2017 through 2021 WSDOT monitored for
marine mammals in Elliott Bay for the Seattle Multimodal Project.
During this time, marine mammal monitoring occurred for 377 days. Since
the Seattle Multimodal Project occurred in Elliott Bay, WSDOT
considered this marine mammal monitoring data to be the most
comprehensive and relevant for estimating take for the Seattle Slip 3
VTS Replacement Project. Therefore, this data compiled all of these
monitoring results and calculated total sightings, average sightings
per day, and maximum sightings per day for all species of marine
mammals that were observed (table 6). WSDOT used their best
professional judgement and used this data to estimate take by
multiplying maximum sighting per day by 19, which is the maximum number
of in-water working days WSDOT estimates it would take to complete the
project in a total worst case scenario.
NMFS has carefully evaluated these methods and concludes that it is
an accurate and appropriate method for estimating take for WSDOTs
activities for this project.
Table 6--Marine Mammals Sighted at the Seattle Multimodal Project
----------------------------------------------------------------------------------------------------------------
Average Maximum
Total individuals individuals
Species individuals sighted/day sighted in one- Take requested
sighted \a\ (377 days) \a\ day \a\
----------------------------------------------------------------------------------------------------------------
Harbor seal......................... 2,271 6.0 32 Yes.
Northern elephant seal.............. 1 0.003 1 Yes.
California sea ion.................. 3,669 9.7 29 Yes.
Steller sea ion..................... 112 0.3 10 Yes.
Unidentified pinniped............... 121 N/A N/A N/A.
Killer whale Southern resident...... 170 0.5 26 No.
Killer whale transient.............. 79 0.2 20 Yes.
Gray whale.......................... 5 0.01 2 Yes.
Humpback whale...................... 8 0.02 1 No.
Minke whale......................... 3 0.008 1 Yes.
Unidentified large whale............ 2 N/A 1 N/A.
Unidentified small whale............ 10 N/A N/A N/A.
Harbor porpoise..................... 655 1.7 72 Yes.
Dall's porpoise..................... 8 0.02 5 Yes.
Common bottlenose dolphin........... 6 0.02 2 Yes.
Pacific white-sided dolphin......... 2 0.005 2 Yes.
Long-beaked common dolphin.......... 0 N/A 0 Yes.
Unidentified dolphin/porpoise....... 46 N/A 6 N/A.
----------------------------------------------------------------------------------------------------------------
\a\ WSDOT 2022.
Gray Whale--Although gray whales are common on the southern ends of
Whidbey and Camano Islands in the Puget Sound February through May,
they are rarely sighted in the construction area (Calambokidis et. al.
2024). During the Seattle multimodal project only five gray whales were
detected over 377 days of monitoring with a maximum of two individuals
observed on a single day (WSDOT 2022). WSDOT estimated that up to 2
gray whales could be taken per day for the 19 days of construction, for
a total of 38 takes by Level B harassment.
Since Seattle Slip 3 VTS Replacement Project construction would
occur from August through mid-February, gray whales occurrence is
expected to be relatively low. In this context, and given that gray
whales are highly conspicuous, we have a high degree of confidence that
WSDOT can successfully implement shutdowns as necessary to avoid any
potential Level A harassment of gray whales. WSDOT must also monitor
the Orca Network and the Whale Report Alert System (WRAS) daily in
order to maintain awareness of regional whale occurrence and movements
(see Mitigation and Monitoring and Reporting sections below).
Therefore, take of gray whales by Level A harassment is not anticipated
or authorized.
Minke Whale--Minke whales are uncommon during fall and winter
months in the Puget Sound but are rarely sighted in the construction
area (Calambokidis and Baird 1994). During the Seattle Multimodal
Project only three minke whale detections occurred over 377 days of
monitoring with a maximum of one detection on a single day (WSDOT
2022). WSDOT estimated that up to 1 minke whale could be taken per day
for the 19 days of construction, for a total of 19 takes by Level B
harassment.
Since the Seattle Slip 3 VTS Replacement Project construction would
occur from August through mid-February, minke whale occurrence is
expected to be relatively low. In these circumstances, and given that
minke whales are highly conspicuous, we have a high degree of
confidence that WSDOT can successfully implement shutdowns as necessary
to avoid any potential Level A harassment of minke whales. WSDOT must
also monitor the Orca Network and the WRAS daily in order to maintain
awareness of regional whale occurrence and movements (see Mitigation
and Monitoring and Reporting sections below). Therefore, take of minke
whales by Level A harassment is not anticipated or authorized.
Transient Killer Whale--Transient killer whales are common in in
the Puget Sound in all months and a total of 79 transient killer whale
detections occurred over 377 days of monitoring for the Seattle
Multimodal Project with a maximum of 20 detections in a single day
(Orca Network 2021, WSDOT 2022). WSDOT estimated that up to 20
incidents of take for transient killer whales could occur per day for
19 days of construction, for a total of 380 takes by Level B
Harassment. Transient killer whales are common in the Puget Sound and
are highly conspicuous.
[[Page 76810]]
The largest Level A harassment zone for mid-frequency cetaceans for
all construction for the Seattle Slip 3 VTS Replacement Project is less
than 6 m. It is highly unlikely that any cetacean would enter within 6
m of active pile driving, and no take by Level A harassment for any
mid-frequency cetacean is expected to occur. WSDOT must also monitor
the Orca Network and the WRAS daily in order to maintain awareness of
regional whale occurrence and movements (see Mitigation and Monitoring
and Reporting sections below). Therefore, take of transient killer
whales by Level A harassment is not anticipated or authorized.
Bottlenose Dolphin--Bottlenose dolphins are considered to be rare
in the Puget Sound but they were detected by the Cascadia Research
Collective and reported via the Orca Network in 2017 (Cascadia Research
Collective, 2017). They were also detected on six occasions with a
maximum of two detections on a single day during the Seattle Multimodal
Project (WSDOT 2022). WSDOT estimated that up to 2 bottlenose dolphins
could be taken per day for the 19 days of construction, for a total of
38 takes by Level B harassment.
The largest Level A harassment zone for mid-frequency cetaceans for
all construction of the Seattle Slip 3 VTS Replacement Project is less
than 6 m. It is highly unlikely that any cetacean would enter within 6
m of active pile driving, and no take by Level A harassment for any
mid-frequency cetacean is expected to occur. WSDOT must also monitor
the Orca Network and the WRAS daily in order to maintain awareness of
regional whale occurrence and movements (see Mitigation and Monitoring
and Reporting sections below). Therefore, take of bottlenose dolphins
by Level A harassment is not anticipated or authorized.
Long-Beaked Common Dolphin--No confirmed detections of long-beaked
common dolphins occurred during the Seattle Multimodal Project but six
unidentified delphinids were observed (WSDOT 2022). WSDOT assumed that
up to two of these unidentified delphinids could have been long-beaked
common dolphins. Therefore, WSDOT estimated that up to 2 long-beaked
common dolphins could be taken per day for the 19 days of construction,
for a total of 38 takes by Level B harassment.
The largest Level A harassment zone for mid-frequency cetaceans for
all construction of the Seattle Slip 3 VTS Replacement Project is less
than 6 m. It is highly unlikely that any cetacean would enter within 6
m of active pile driving, and no take by Level A harassment for any
mid-frequency cetacean is expected to occur. WSDOT must also monitor
the Orca Network and the WRAS daily in order to maintain awareness of
regional whale occurrence and movements (see Mitigation and Monitoring
and Reporting sections below). Therefore, take of long-beaked common
dolphins by Level A harassment is not anticipated or authorized.
Pacific White-Sided Dolphin--Pacific white-sided dolphins are rare
in the Puget Sound but have been observed in San Juan Channel (Orca
Network 2012). Two Pacific white sided dolphins were also observed
during the Seattle Multimodal Project (WSDOT 2022). WSDOT estimated
that up to 2 Pacific white-sided dolphins could be taken per day for
the 19 days of construction, for a total of 38 takes by Level B
harassment.
The largest Level A harassment zone for mid-frequency cetaceans for
all construction of the Seattle Slip 3 VTS Replacement Project is less
than 6 m. It is highly unlikely that any cetacean would enter within 6
m of active pile driving, and no take by Level A harassment for any
mid-frequency cetacean is expected to occur. WSDOT must also monitor
the Orca Network and the WRAS daily in order to maintain awareness of
regional whale occurrence and movements (see Mitigation and Monitoring
and Reporting sections below). Therefore, take of Pacific white-sided
dolphins by Level A harassment is not anticipated or authorized.
Dall's Porpoise--Dall's porpoises are considered rare within the
project area. WSDOT recorded only eight detections over 377 days of
monitoring during the Seattle Multimodal Project (WSDOT 2022). WSDOT
estimated that up to 5 Dall's porpoises could be taken per day for the
19 days of construction, for a total of 95 takes by Level B harassment.
The largest Level A harassment zone for high-frequency cetaceans
for all construction of the Seattle Slip 3 VTS Replacement Project is
less than 100 m. Due to the relatively short duration of construction
for the Seattle Slip 3 VTS Replacement Project and infrequent
detections of Dall's porpoises, WSDOT estimated that no Dall's
porpoises would be likely to enter the Level A harassment zone. Take by
Level A harassment of Dall's porpoises is not anticipated or
authorized.
Harbor Porpoise--From 2017 through 2022, WSDOT recorded 655
detections of harbor porpoises with a maximum of 72 detections on a
single day (WSDOT 2022). WSDOT estimated that up to 72 instances of
take for harbor porpoises could occur per day for the 19 days of
construction, for a total of 1,368 takes by Level B harassment.
The largest Level A harassment zone for high-frequency cetaceans is
under 100 m. Although harbor porpoises are relatively common in the
Puget Sound, we assume that WSDOT would be able to cease construction
if harbor porpoises entered the Level A harassment zone before
sufficient duration of exposure for PTS to occur. Take by Level A
harassment is not anticipated or authorized.
California Sea Lion--California sea lions are relatively common
throughout the Puget Sound. During the Seattle Multimodal Project a
maximum of 29 sea lions were detected on a single day with a total of
3,669 sightings over the 377 days of monitoring (WSDOT 2022). WSDOT
estimated that 32 California sea lions would enter the Level B
harassment zone for each of the 19 days of construction, for a total of
551 takes by Level B harassment.
The largest Level A harassment zone for Otariids for all
construction of the Seattle Slip 3 VTS Replacement Project is less than
3 m. It is highly unlikely that any Otariids would enter within 3 m of
active pile driving, and no take by Level A harassment for any mid-
frequency cetacean is expected to occur. Therefore, take of California
sea lions by Level A harassment is not anticipated or authorized.
Steller Sea Lion--Monitoring during the Seattle Multimodal Project
recorded 112 detections of Steller sea lions over 377 days of
monitoring, which is less than 1 detection per day. However, a maximum
of 10 detections were recorded in a single day. Therefore, WSDOT
estimated that 10 Steller sea lions would enter the Level B harassment
zone each day for the 19 days of construction of the project, for a
total of 190 takes by Level B harassment.
The largest Level A harassment zone for Otariids for all
construction of the Seattle Slip 3 VTS Replacement Project is less than
3 m. It is highly unlikely that any Otariids would enter within 3 m of
active pile driving, and no take by Level A harassment for any mid-
frequency cetacean is expected to occur. Therefore, take of steller sea
lions by Level A harassment is not anticipated or authorized.
Harbor Seal--Harbor seals are common in the project area. During
the Seattle Multimodal Project WSDOT recorded an average of 6 harbor
seal detections per day and a maximum of
[[Page 76811]]
32 in a single day (WSDOT 2022). WSDOT estimated that a maximum of 32
harbor seals will enter the Level B harassment zones for each of the 19
days of construction, for a total of 608 takes by Level B harassment.
The largest Level A harassment zone for high-frequency phocids is
under 41 m. Although harbor seals are relatively common in the Puget
Sound, we assume that WSDOT would be able to cease construction if
harbor seals entered the Level A harassment zone before sufficient
duration of exposure for PTS to occur. Take by Level A harassment is
not anticipated or authorized.
Northern Elephant Seal--Although northern elephant seals are rare
in the Puget Sound, one individual was detected during the Seattle
Multimodal Project. Since northern elephant seals are rare in the
construction area, WSDOT estimated that a maximum of one elephant seal
would enter the Level B harassment zone per day for each of the 19 days
of construction. A total of 19 takes by Level B harassment is estimated
for northern elephant seals for construction associated with the
Seattle Slip 3 VTS Replacement Project.
Similar to harbor seals, the largest harassment zone is less than
41 m for all construction activities. Given the anticipated rarity of
occurrence for elephant seals, WSDOT does not expect northern elephant
seals to enter Level A harassment zones without being detected prior to
shutdown. Construction will cease if a northern elephant seal is
observed entering Level A harassment zone. Therefore, no take by Level
A harassment of northern elephant seals is anticipated or authorized.
Table 7--Estimated Take of Marine Mammal by Level B Harassment for 19 Days of In-Water Construction
----------------------------------------------------------------------------------------------------------------
Maximum Total takes by
Species sightings/day Level B Percent of
\a\ harassment stock
----------------------------------------------------------------------------------------------------------------
Phocids:
Harbor seal................................................. 32 608 5.51
Northern elephant seal...................................... 1 19 0.02
Otariids:
California sea lion......................................... 29 551 0.24
Steller sea lion............................................ 10 190 0.23
Cetaceans:
Killer whale transient...................................... 20 380 110
Gray whale.................................................. 2 38 0.15
Minke whale................................................. 1 19 3.7
Harbor porpoise............................................. 72 1,368 16.5
Dall's porpoise............................................. 5 95 0.37
Common bottlenose dolphin................................... 2 38 3.0
Pacific white-sided dolphin................................. 2 38 0.13
Long-beaked common dolphin.................................. 5 38 0.05
----------------------------------------------------------------------------------------------------------------
\a\ WSDOT 2022.
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, and impact on
operations.
Shutdown Zones
Prior to the start of any in-water construction, WSDOT must
establish shutdown zones for all planned activities. Shutdown zones are
pre-defined areas within which construction will be halted upon
sightings of a marine mammal or in anticipation of a marine mammal
entering the established shutdown zones. Pile-driving will not re-
commence until all marine mammals are assumed to have cleared these
established shutdown zones.
WSDOT must establish shutdown zones for Southern Resident killer
whales (SRKWs) and humpback whales (HWs) at the Level B harassment zone
for the vibratory removal of 14-in piles at 1,600 m and at 750 m for
impact driving 24-in piles (table 4 and table 8). These shutdown zones
are the Level B harassment zone rounded up to the nearest 50 m for each
pile size and driving method. Shutdown zones for the remaining pile-
driving for SRKWs and HWs will be established at 15,410 m, which is
equivalent to the maximum Level B harassment area before it reaches
land.
The largest Level A harassment zone for the vibratory removal of
14-in piles is 3.2 m for all cetaceans and pinnipeds. However, WSDOT
will implement a shutdown zone at 50 m for removal of 14-in piles. The
shutdown zones for the
[[Page 76812]]
remaining pile-driving activities will be established at 100 m for all
hearing groups of cetaceans (except SRKWs and HWs, as discussed above)
and 50 m for all pinnipeds. The largest Level A harassment zone amongst
all hearing groups of cetaceans would be 97.3 m for the remaining pile-
driving (table 4). The largest Level A harassment zone amongst
pinnipeds will be 40.6 m for the remaining pile driving (table 4). With
WSDOTs established shutdown zones, all incidental take will be
prevented for SRKWs and HWs and only take by Level B harassment is
authorized to occur for the remaining species of cetaceans and
pinnipeds.
WSDOT will also establish shutdown zones for all other species of
marine mammals for which take has not been authorized or for which
incidental take has been authorized but the number of authorized takes
has already been met. Those zones will be equivalent to Level B
harassment zones provided for each activity in table 4.
In addition to the shutdown zones mentioned above, WSDOT proposes
to implement shutdown measures for SRKWs and HWs. If SRKWs or HWs are
observed within or approaching established shutdown zones (see table
8), WSDOT will shut down pile driving equipment to avoid take of these
species. If a killer whale approaches a Level B harassment zone, and it
is unknown if it is a SRKW or a Transient killer whale, WSDOT would
assume it is a SRKW and implement shutdown measures. Pile driving would
only resume if the killer whale could be confirmed as a Transient
killer whale.
Table 8--Shutdown Zones for All Pile-Driving Activities for the Seattle Slip 3 VTS Replacement Project
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shutdown zones (m)
----------------------------------------------------------- SRKW and HW
Pile size and type Pile driving method LF MF HF shutdown zones
cetaceans cetaceans cetaceans Phocids Otarids (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
14-in steel................................. Vibratory removal............. 50 50 50 50 50 1,600
24-in steel................................. Vibratory installation and 100 100 100 50 50 * 15,410
removal.
24-in steel................................. Impact installation........... 100 100 100 50 50 750
30-in steel................................. Vibratory installation........ 100 100 100 50 50 * 15,410
78-in steel................................. Vibratory Installation........ 100 100 100 50 50 * 15,410
--------------------------------------------------------------------------------------------------------------------------------------------------------
* 15,410 m is the maximum distance sound can travel before reaching land.
Protected Species Observers
The monitoring locations for all PSOs during all pile driving
activities (described in the Monitoring and Reporting Section) will
ensure that the entirety of all shutdown zones are visible. If
environmental conditions deteriorate such that the entirety of shutdown
zones would not be visible (e.g., fog, heavy rain, Beaufort sea state,
etc.,) all pile driving must be delayed until PSOs are confident that
marine mammals in the shutdown zones could be detected.
Monitoring for Level A and Level B Harassment
All of the harassment zones will be monitored by PSOs to the extent
practicable. Established monitoring zones will allow PSOs to observe
marine mammals and define clear monitoring protocols for areas adjacent
to shutdown zones. The monitoring zones and protocols will enable PSOs
to be aware of and communicate the presence of marine mammals in
project areas and outside of project areas to prepare for potential
cessation of pile driving activities should a marine mammal enter a
shutdown zone.
Pre-Activity Monitoring
Prior to the start of daily in-water construction activities, or
whenever a break in pile driving of 30 minutes or longer occurs, PSOs
must observe shutdown and monitoring zones for a 30 minute period. The
shutdown zone will be considered cleared when a marine mammal has not
been observed within the zone for that 30-minute period. If pile
driving is delayed or halted due to the presence of a marine mammal,
the activities may not commence or resume until either the animal has
voluntarily exited and been visually confirmed beyond the shutdown
zones or 15 minutes have passed without re-detection of the animal.
When a marine mammal for which Level B harassment take is authorized is
present in the Level B harassment zone and authorized take has not been
met, activities may begin. If work ceases for more than 30 minutes, the
pre-activity monitoring of the shutdown zones must commence. A
determination that the shutdown zone is clear must be made during a
period of good visibility (i.e., the entire shutdown zone and
surrounding waters must be visible to the naked eye).
Soft Start
Soft-start procedures are used to provide additional protection to
marine mammals by providing warning and/or giving marine mammals a
chance to leave the area prior to the hammer operating at full
capacity. For impact pile driving, contractors are required to provide
an initial set of three strikes from the hammer at reduced energy,
followed by a 30-second waiting period, then two subsequent reduced-
energy strike sets. Soft start must be implemented at the start of each
day's impact pile driving and at any time following cessation of impact
pile driving for a period of 30 minutes or longer.
Bubble Curtain
A bubble curtain will be employed during impact installation or
proofing of steel piles, unless the piles are driven in the dry, or
water is less than 3 ft (feet) (0.9 m) in depth. A noise attenuation
device is not be required during vibratory pile driving. If a bubble
curtain or similar measure is used, it must distribute air bubbles
around 100 percent of the piling perimeter for the full depth of the
water column. Any other attenuation measure would be required to
provide 100 percent coverage in the water column for the full depth of
the pile. The lowest bubble ring must be in contact with the mudline
for the full circumference of the ring. The weights attached to the
bottom ring would ensure 100 percent mudline contact. No parts of the
ring or other objects will prevent full mudline contact.
Based on our evaluation of the applicant's mitigation measures,
NMFS determined that the established 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
[[Page 76813]]
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 physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
Visual Monitoring
Marine mammal monitoring during pile driving activities must be
conducted by PSOs meeting NMFS' standards and in a manner consistent
with the following:
<bullet> PSOs must be independent of the activity contractor (for
example, employed by a subcontractor) and have no other assigned tasks
during monitoring periods;
<bullet> At least one PSO must have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization;
<bullet> Other PSOs may substitute education (degree in biological
science or related field) or training for experience; and
<bullet> Where a team of three or more PSOs is required, a lead
observer or monitoring coordinator would be designated. The lead
observer would be required to have prior experience working as a marine
mammal observer during construction.
<bullet> PSOs must be approved by NMFS prior to beginning any
activities subject to this IHA.
PSOs must have the following additional qualifications:
<bullet> Ability to conduct field observations and collect data
according to assigned protocols;
<bullet> Experience or training in the field identification of
marine mammals, including the identification of behaviors;
<bullet> Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
<bullet> Writing skills sufficient to prepare a report of
observations including but not limited to the number and species of
marine mammals observed; dates and times when in-water construction
activities were conducted; dates, times, and reason for implementation
of mitigation (or why mitigation was not implemented when required);
and marine mammal behavior; and
<bullet> Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
During all pile driving activities, a minimum of three PSO will
monitor shutdown zones during pile driving activities. A total of three
PSOs will monitor the area for the vibratory removal 14-in steel H-
piles, two PSOs will monitor from the construction site and the other
PSO will monitor from Pier 69/70. For the vibratory installation and
removal of 24, 30, and 78-in steel pipe piles eight PSOs will monitor
shutdown zones. PSOs as described above, one PSO will be stationed on
each of the Seattle-Bainbridge Island Ferries (two PSOs in total on
ferries), one PSO stationed at Alki Beach Pier on the south end of
Elliott Bay, one PSO stationed at Magnolia Viewpoint on the north end
of Elliott Bay, one PSO station at Rolling Bay on Bainbridge Island,
and another PSO stationed at Rockaway Beach on Bainbridge Island.
During impact pile driving 24-in steel pipe piles, two PSOs will be
stationed at the construction site and an additional PSO will be
stationed at pier 62 at the north end of the SRKW and HW shutdown zones
(figure 1). If one of the Seattle-Bainbridge Island Ferries is delayed
or inoperable during pile installation described above, then WSDOT must
place the second ferry PSO at Creosote Bench Park on Bainbridge Island
as an alternate monitoring location (figure 2).
Monitoring must be conducted 30 minutes before, during, and 30
minutes after all in water construction activities. In addition,
observers must record all incidents of marine mammal occurrence,
regardless of distance from activity, and will document any behavioral
reactions in concert with distance from piles being driven or removed.
Pile driving activities include the time to install or remove a single
pile or series of piles, as long as the time elapsed between uses of
the pile driving equipment is no more than 30 minutes.
BILLING CODE 3510-22-P
[[Page 76814]]
[GRAPHIC] [TIFF OMITTED] TN19SE24.000
[[Page 76815]]
[GRAPHIC] [TIFF OMITTED] TN19SE24.001
BILLING CODE 3510-22-C
Coordination With Marine Mammal Research Networks
Prior to the start of pile driving for the day, the PSOs will
contact the Orca Network to find out the location of the nearest marine
mammal sightings. Daily sightings information will be checked several
times a day. The Orca Network consists of a list of over 600 (and
growing) residents, scientists, and government agency personnel in the
United States and Canada. Sightings are called or emailed into the Orca
Network and immediately distributed to the NMFS Northwest Fisheries
Science Center, the Center for Whale Research, Cascadia Research, the
Whale Museum Hotline, and the British Columbia Sightings Network.
Sightings information collected by the Orca Network includes
detection by hydrophone. The SeaSound Remote Sensing Network is a
system of interconnected hydrophones installed in the marine
environment of Haro Strait (west side of San Juan Island) to study orca
communication, in-water noise, bottom fish ecology, and local climatic
conditions. A hydrophone at the Port Townsend Marine Science Center
measures average in-water sound levels and automatically detects
unusual sounds. These passive acoustic devices allow researchers to
hear when different marine mammals come into the region. This acoustic
network, combined with the volunteer visual sighting network allows
researchers to document presence and location of various marine mammal
species.
WSDOT also participates in the Whale Report Alert System (WRAS/
WhaleReport Alert System--Ocean Wise). In October 2018, the Ocean Wise
Sightings Network (formerly the B.C. Cetacean Sightings Network)
launched an alert system that broadcasts details of whale presence to
large commercial vessels. Information on whale presence is obtained
from real-time observations reported to the Ocean Wise Sightings
Network via the WhaleReport app. The alerts inform shipmasters and
pilots of cetacean occurrence in their vicinity. This awareness better
enables vessels to undertake adaptive mitigation measures, such as
slowing down or altering course in the presence of cetaceans, to reduce
the risk of collision and disturbance.
All WSDOT ferry vessel crews have been trained in the use of WRAS,
and input new sightings of cetaceans so data would be available to
other vessels and to PSOs on the project. The lead PSO will check the
WRAS sightings regularly during the day to be aware of cetaceans
approaching the shutdown zones.
With this level of coordination in the region of activity, WSDOT
would be able to get additional real-time information on the presence
or absence of cetaceans prior to start of in-water construction each
day.
Reporting
A draft marine mammal monitoring report must be submitted to NMFS
within 90 days after the completion of pile driving activities, or 60
days prior to a requested date of issuance of any future IHAs for the
project, or other projects at the same location, whichever comes first.
The marine mammal report would include an overall description of
[[Page 76816]]
work completed, a narrative regarding marine mammal sightings, and
associated PSO data sheets. Specifically, the report must include:
<bullet> Dates and times (begin and end) of all marine mammal
monitoring;
<bullet> Construction activities occurring during each daily
observation period, including: (a) How many and what type of piles were
driven or removed and the method (i.e., impact or vibratory); and (b)
the total duration of time for each pile (vibratory driving) number of
strikes for each pile (impact driving);
<bullet> PSO locations during marine mammal monitoring; and
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance.
For each observation of a marine mammal, the following must be
reported:
<bullet> Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting;
<bullet> Time of sighting;
<bullet> Identification of the animal(s) (e.g., genus/species,
lowest possible taxonomic level, or unidentified), PSO confidence in
identification, and the composition of the group if there is a mix of
species;
<bullet> Distance and location of each observed marine mammal
relative to the pile being driven or hole being drilled for each
sighting;
<bullet> Estimated number of animals (min/max/best estimate);
<bullet> Estimated number of animals by cohort (adults, juveniles,
neonates, group composition, etc.);
<bullet> Description of any marine mammal behavioral observations
(e.g., observed behaviors such as feeding or traveling), including an
assessment of behavioral responses thought to have resulted from the
activity (e.g., no response or changes in behavioral state such as
ceasing feeding, changing direction, flushing, or breaching);
<bullet> Number of marine mammals detected within the harassment
zones, by species; and
<bullet> Detailed information about implementation of any
mitigation (e.g., shutdowns and delays), a description of specified
actions that ensued, and resulting changes in behavior of the
animal(s), if any.
If no comments are received from NMFS within 30 days, the draft
reports would constitute the final reports. If comments are received, a
final report addressing NMFS' comments is required to be submitted
within 30 days after receipt of comments. All PSO datasheets and/or raw
sighting data must be submitted with the draft marine mammal report.
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, WSDOT must report the
incident to the Office of Protected Resources (OPR)
(<a href="/cdn-cgi/l/email-protection#d18183ff988581ff9cbebfb8a5bea3b8bfb683b4a1bea3a5a291bfbeb0b0ffb6bea7"><span class="__cf_email__" data-cfemail="0c5c5e2245585c224163626578637e65626b5e697c637e787f4c62636d6d226b637a">[email protected]</span></a>), NMFS and to the West Coast Region
(WCR) regional stranding coordinator as soon as feasible. If the death
or injury was clearly caused by the specified activity, WSDOT must
immediately cease the specified activities until NMFS is able to review
the circumstances of the incident and determine what, if any,
additional measures are appropriate to ensure compliance with the terms
of the IHAs. WSDOT will not resume their activities until notified by
NMFS.
The report must include the following information:
1. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the
animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the
animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and
6. General circumstances under which the animal was discovered.
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338,
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
Pile driving and removal activities associated with this project
have the potential to disturb or displace marine mammals. The
activities for this project may result in incidental take, in the form
of Level B harassment, from underwater sound generated from pile
driving or removal. Potential takes could occur if marine mammals are
present in the ensonified zone when pile driving activities are
underway.
The takes from Level B harassment would be due to potential
behavioral disturbance and TTS. No serious injury or mortality is
anticipated given the nature of the activities and measures designed to
minimize the possibility of injury to marine mammals. The potential for
harassment is minimized through the construction method and the
implementation of the planned mitigation measures (see Mitigation
section).
To avoid repetition, the discussion of our analysis applies to all
the species listed in table 1, given that the anticipated effects of
this activity on these different marine mammal stocks are expected to
be similar in nature. Where there are special circumstances for a
species or stock (e.g., gray whales), they are included as a separate
subsection below.
NMFS has identified key factors which may be employed to assess the
level of analysis necessary to conclude whether potential impacts
associated with a specified activity should be considered negligible.
These include (but are not limited to) the type and magnitude of
taking, the amount and importance of the available habitat for the
species or stock that is affected, the duration of the anticipated
effect to the species or stock, and the status of the species or stock.
The following factors support negligible impact determinations for all
affected stocks.
No take by Level A harassment is anticipated or authorized
incidental to the Seattle Slip 3 VTS Replacement Project. However, take
by Level B
[[Page 76817]]
harassment is expected and authorized for 12 marine mammal species.
Effects on individuals that are taken by Level B harassment, on the
basis of reports in the literature as well as monitoring from other
similar activities, will likely be limited to reactions such as area
avoidance, increased swimming speeds, increased surfacing time, or
decreased foraging (if such activity were occurring) (e.g., Thorson and
Reyff 2006 and NMFS 2018). Individual marine mammals would most likely
move away from sound sources and temporarily avoid the ensonified area
while pile driving is occurring. If the sound produced from the
construction activities is sufficiently disturbing, marine mammals are
likely to simply avoid the area while activities are occurring,
particularly as the project is located on a busy waterfront with high
amounts of vessel traffic. We expect that any avoidance of the project
areas by marine mammals would be temporary in nature and that any
marine mammals that avoid the project areas during construction would
not be permanently displaced. Short-term avoidance of the project areas
and energetic impacts of interrupted foraging or other important
behaviors is unlikely to affect the reproduction or survival of
individual marine mammals, and the effects of behavioral disturbance on
individuals is not likely to accrue in a manner that would affect the
rates of recruitment or survival of any affected stock.
The projects are also not expected to have significant adverse
effects on affected marine mammals' habitats. The project activities
will not modify existing marine mammal habitat for a significant amount
of time. The activities may cause some fish to leave the area of
disturbance, thus temporarily impacting marine mammals' foraging
opportunities in a limited portion of the foraging range; but, because
of the short duration of the activities and the relatively small area
of the habitat that may be affected (with no known particular
importance to marine mammals), the impacts to marine mammal habitat are
not expected to cause significant or long-term negative consequences.
Aside from the biologically important area (BIA) for gray whales
described below, there are no known areas of importance for other
marine mammals, such as feeding or pupping areas, in the project area.
For all species and stocks, take would occur within a limited,
relatively confined area (Elliott Bay within central Puget Sound) of
the stocks' ranges. Given the availability of suitable habitat nearby,
any displacement of marine mammals from the project areas is not
expected to affect marine mammals' fitness, survival, and reproduction
due to the limited geographic area that will be affected in comparison
to the much larger habitat for marine mammals in Puget Sound. Level B
harassment will be reduced to the level of least practicable adverse
impact to the marine mammal species or stocks and their habitat through
use of mitigation measures described herein. Some individual marine
mammals in the project areas may be present and be subject to repeated
exposure to sound from pile driving on multiple days. However, these
individuals would likely return to normal behavior during gaps in pile
driving activity. The Seattle waterfront is a busy area and monitoring
reports from previous in water pile driving activities indicate that
marine mammals remain in Elliott Bay and the central Puget Sound area
throughout pile driving activities. Therefore, any behavioral effects
of repeated or long duration exposures are not expected to negatively
affect survival or reproductive success of any individuals. Thus, even
repeated Level B harassment of some small subset of an overall stock is
unlikely to result in any effects on rates of reproduction and survival
of the stock.
Gray Whales
The Puget Sound is part of a BIA for gray whales as they migrate
between the Arctic and Mexico (Calambokidis et al., 2024). Although the
project area is located within the Puget Sound, the gray whale BIA does
not overlap with the ensonified zones and gray whales typically remain
further north around Whidbey and Camano Islands (Calambokidis et al.,
2018). Gray whales are also rarely seen in the project area. This
suggests that impacts from the project would have minimal to no impact
on the migration of gray whales in the BIA, and would therefore not
affect reproduction or survival.
There was an unusual mortality event (UME) for gray whales from
2018 through 2023 (see the Description of Marine Mammals in the Area of
Specified Activities section of this notice). However, we do not expect
authorized takes for this project to have any additional affects to
reproduction or survival. As mentioned previously, no take by Level A
harassment, serious injury or mortality is expected. Takes authorized
by Level B harassment of gray whales would be in the form of behavioral
disturbance. The results from necropsies showed evidence that gray
whale nutritional condition was poor during the UME. The area that
would be temporarily impacted from construction does not overlap with
the gray whale feeding BIA in the northern Puget Sound. Therefore, the
construction associated with the Seattle Slip 3 VTS Replacement Project
is unlikely to disrupt any critical behaviors (e.g. feeding) or have
any effect on reproduction or survival of gray whales.
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> Level A harassment is not anticipated or authorized for
all 12 marine mammal species;
<bullet> Level B harassment would be in the form of behavioral
disturbance, primarily resulting in avoidance of the project areas
around where impact or vibratory pile driving is occurring, and some
low-level TTS that may limit the detection of acoustic cues for
relatively brief amounts of time in relatively confined footprint of
the activities;
<bullet> Nearby areas of similar habitat value within Puget Sound
are available for marine mammals that may temporarily vacate the
project areas during construction activities for both projects;
<bullet> Effects on species that serve as prey for marine mammals
from the activities are expected to be short-term and, therefore, any
associated impacts on marine mammal feeding are not expected to result
in significant or long-term consequences for individuals, or to accrue
to adverse impacts on their populations from either project;
<bullet> The number of anticipated takes by Level B harassment is
relatively low for all stocks for both projects;
<bullet> The ensonifed areas from the project is very small
relative to the overall habitat ranges of all species and stocks, and
will not adversely affect ESA-designated critical habitat, or cause
more than minor impacts in any BIAs or any other areas of known
biological importance;
<bullet> The lack of anticipated significant or long-term negative
effects to marine mammal habitat from the project;
<bullet> The efficacy of the mitigation measures in reducing the
effects of the specified activities on all species and stocks for the
project; and
<bullet> Monitoring reports from similar work in Puget Sound that
have documented little to no effect on individuals of the same species
that could be impacted by the specified activities from the project.
[[Page 76818]]
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 monitoring and mitigation
measures, NMFS determined that the total marine mammal take from the
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.
For all species and stocks other than killer whales from the West
Coast Transient stock, the authorized take is below one-third of the
stock abundance. The authorized take of Transient killer whales as a
proportion of the stock abundance is greater than one-third, if all
takes are assumed to occur for different individuals. The project area
represents a small portion of the stock's range from Alaska to
California (Muto et al., 2019). Sighting reports from the Orca Network
support that it is reasonable to suspect that the same individual
Transient Killer whales would be present within the ensonified project
area during the relatively short duration (19 days) of construction
activities. Since the construction area represents a small portion of
Transient killer whales range and construction would occur over a short
period, it is more likely that there will be multiple takes of the same
individuals.
Based on the analysis contained herein of the construction
activities (including the mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS determined 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 ESA 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 expected or authorized
for 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 evaluate our proposed action (i.e., the issuance of an IHA)
and alternatives 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 this IHA qualifies to be categorically excluded from
further NEPA review.
Authorization
NMFS has issued an IHA to WSDOT for the potential harassment of
small numbers of 12 marine mammal species incidental to the Seattle
Slip 3 VTS Replacement project in Seattle, Washington, that includes
the previously explained mitigation, monitoring and reporting
requirements.
Dated: September 13, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-21287 Filed 9-18-24; 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 September 19, 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.