Rule2026-17391
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Duckabush Estuary Restoration Project in 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 26, 2026
Effective
July 9, 2027
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS, upon request from the U.S. Army Corps of Engineers (USACE) issues this final rule pursuant to the Marine Mammal Protection Act (MMPA), to govern the taking of marine mammals incidental to the Duckabush Estuary Restoration Project (DERP) in Hood Canal, Washington over 5 years (2027-2032). This final rule, which allows for the issuance of a 5-year letter of authorization (LOA) allowing for the incidental take of marine mammals during the described activities and timeframes, prescribes the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species and their habitat, and establishes requirements pertaining to the monitoring and reporting of such taking.
Full Text
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<title>Federal Register, Volume 91 Issue 164 (Wednesday, August 26, 2026)</title>
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[Federal Register Volume 91, Number 164 (Wednesday, August 26, 2026)]
[Rules and Regulations]
[Pages 55015-55027]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-17391]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 260820-0009]
RIN 0648-BN42
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Duckabush Estuary Restoration
Project in Washington
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; notification of issuance of Letter of
Authorization.
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SUMMARY: NMFS, upon request from the U.S. Army Corps of Engineers
(USACE) issues this final rule pursuant to the Marine Mammal Protection
Act (MMPA), to govern the taking of marine mammals incidental to the
Duckabush Estuary Restoration Project (DERP) in Hood Canal, Washington
over 5 years (2027-2032). This final rule, which allows for the
issuance of a 5-year letter of authorization (LOA) allowing for the
incidental take of marine mammals during the described activities and
timeframes, prescribes the permissible methods of taking and other
means of effecting the least practicable adverse impact on marine
mammal species and their habitat, and establishes requirements
pertaining to the monitoring and reporting of such taking.
DATES: Effective from July 9, 2027, through July 8, 2032.
ADDRESSES: Electronic copies of the application and supporting
documents, the proposed rule and associated public comments, as well as
a list of the references cited in this document, may be obtained online
at: https://www.fisheries.noaa.gov/action/
[[Page 55016]]
incidental-take-authorization-us-army-corps-engineers-duckabush-
estuary-restoration-project. In case of problems accessing these
documents, please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Robert Pauline, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose for Regulatory Action
These regulations, promulgated under the authority of the Marine
Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.), establish a
framework for NMFS to authorize the take of marine mammals incidental
to construction activities associated with the DERP project in Hood
Canal, Washington.
Legal Authority for the Action
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A))
directs 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
for up to 5 years if, after notice and public comment, the agency makes
certain findings and promulgates regulations that set forth permissible
methods of taking pursuant to that activity and other means of
effecting the ``least practicable adverse impact'' on the affected
species or stocks and their habitat (see Mitigation section), as well
as monitoring and reporting requirements.
Summary of Major Provisions Within the Rule
Following is a summary of the major provisions of this rule
regarding USACE's activities. These provisions include measures
requiring:
<bullet> Performance of construction work only during daylight
hours when visual monitoring of marine mammals can be implemented;
<bullet> Gradually increasing time periods dedicated to
construction activities each day throughout the day to reduce the risk
of potentially startling marine mammals;
<bullet> Conducting 30 minutes of pre- and post-activity monitoring
associated with pile installation or removal activities;
<bullet> Establishment and monitoring by protected species
observers (PSOs) of a 300-meter observation zone for all construction
activities;
<bullet> Halting construction activity: (1) if a marine mammal
comes within 10 meters of operations of heavy equipment; or (2) a pup
less than one week old comes within 20 meters of where heavy machinery
is operating; and
<bullet> Not initiating construction activities within 300 meters
of a mother-pup pair that is hauled out, or within 100 meters of a
mother-pup pair in the water.
Through adaptive management, the regulations will allow NMFS to
modify (e.g., remove, revise, or add to) the existing mitigation,
monitoring, or reporting measures summarized above and required by the
LOA.
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Section 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 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). If such findings are made, NMFS must prescribe
permissible methods of taking; 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 and can be found in section 3 of the MMPA (16
U.S.C. 1362) and NMFS regulations at 50 CFR 216.103.
Summary of Request
On April 17, 2024, NMFS received a request from the USACE for
regulations and a subsequent LOA to take marine mammals incidental to
construction activities related to the DERP in Washington. A revised
application was submitted on September 27, 2024. We determined the
application was adequate and complete on November 19, 2024. On November
25, 2024, we published a notice of receipt of the USACE's application
in the Federal Register, requesting comments and information related to
the request for 30 days (89 FR 92907). We received no public comments.
On August 15, 2025, we published the proposed rule in the Federal
Register (90 FR 39346) and requested comments and information from the
public. NMFS reviewed the submitted material and considered it for
promulgation of these regulations.
Description of the Specified Activities
A detailed description of the USACE's planned activities are
provided in the proposed rule (90 FR 39346, August 15, 2025). Since
publication of the proposed rule, the USACEC has not made any
modifications to their specified activities; therefore, we refer the
reader to the proposed rule for a detailed description of the specified
activities. Mitigation, monitoring, and reporting measures proposed by
the USACE and included in this final rule are also described in detail
in the proposed rule and summarized later in this document (please see
Mitigation and Monitoring and Reporting). Note that the effective dates
of the regulations and LOA in the proposed rule (90 FR 39346) were
listed as July 30, 2026, through July 29, 2031.
The project has been delayed by one year due to the inability of
the USACE to secure funding during the 2026 budget cycle. Therefore,
the applicant requested new effective dates of July 9, 2027, through
July 8, 2032. These new effective dates have been authorized by NMFS.
The delay of the project by one year (2026 to 2027) and the change in
the effective start date by several weeks (July 30 compared to July 9)
will not affect any additional species or have any impact on the life
cycle of harbor seals. The one-year delay and change of effective start
dates during Year 1 of the LOA is not expected to affect our analysis
in any way. The species affected, number of animals authorized for
take, and mitigation and monitoring requirement remain unchanged.
Additional details on the specified activities are available in the
proposed rule (90 FR 39346, August 15, 2025).
Specified Geographic Region
The specified geographic region is Hood Canal in Puget Sound.
Details regarding this area can be found in the proposed rule (90 FR
39346, August 15, 2025).
Comments and Responses
During the 30-day comment period, we received a single comment
letter from a member of the public that
[[Page 55017]]
contained three separate comments. NMFS has reviewed and considered all
relevant comments received on the proposed rule and issuance of the
LOA. All substantive, relevant comments and our responses are described
below.
Comment 1: The commenter wrote that construction activities could
negatively impact marine mammals and that even a ``small number'' of
takes could lead to disruptions in feeding, breeding, and migratory
patterns, which could have lasting consequences for the population.
Response: Section 101(a)(5)(A) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations 50 CFR 216.104(a)(1) require
applicants to include in their request a detailed description of the
specified activity or class of activities that can be expected to
result in incidental taking of marine mammals. 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. In this
instance, NMFS has determined that the USACE's planned activities will
have a negligible impact on harbor seals in the project area.
NMFS is also required to make a small numbers determination. NMFS
explains the concept of ``small numbers'' in recognition that there
could also be quantities of individuals taken that would correspond
with ``medium'' and ``large'' numbers. As such, for an individual
incidental take authorization, NMFS considers that one-third of the
most appropriate population abundance number--as compared with the
assumed number of individuals taken--is an appropriate limit with
regard to ``small numbers.'' This relative approach is consistent with
relevant case law. See Center for Biological Diversity v. Salazar, 695
F.3d 893, 907 (9th Cir. 2012) (holding that the U.S. Fish and Wildlife
Service reasonably interpreted ``small numbers'' by analyzing take in
relative or proportional terms). As noted above, there is no biological
significance associated with ``small numbers'' and, as such, NMFS
appropriately does not consider ``conservation status'' or other issues
related to the status of a species or stock in making its small numbers
finding. Instead, these concepts are considered as part of the
negligible impact analysis described previously. The USACE requested,
and NMFS has authorized, incidental take that amounts to no more than
14.3 percent of the Washington Inland Hood Canal stock of harbor seals,
which is less than one-third of the stock's population abundance.
Comment 2: The commenter stated that the five-year period of
incidental takes allowed under an LOA in such a sensitive area raises
concerns about the cumulative impact on marine mammal populations. They
stated that the risk of compounding negative effects over time--
especially in a confined area like Hood Canal--demands a more cautious,
conservative approach to project approval, as the ecological
consequences of such disruptions may not become evident until it is too
late to reverse the damage.
Response: Neither the MMPA nor NMFS' codified implementing
regulations require consideration of other unrelated activities and
their impacts on marine mammal populations. The preamble for NMFS'
implementing regulations (54 FR 40338, September 29, 1989) states in
response to comments that the impacts from other past and ongoing
anthropogenic activities are to be incorporated into the negligible
impact analysis via their impacts on the baseline. Consistent with that
direction, NMFS has factored into its negligible impact analysis the
impacts of other past and ongoing anthropogenic activities via their
impacts on the baseline (e.g., as reflected in the density,
distribution and status of the species, population size and growth
rate, and other relevant stressors). The 1989 final rule for the MMPA
implementing regulations also addressed public comments regarding
cumulative effects from future, unrelated activities. There, NMFS
stated that such effects are not considered in making findings under
MMPA section 101(a)(5) concerning negligible impact.
Comment 3: The commenter stated that an incidental take
authorization may overlook the availability of alternatives that could
prevent the need for any take of marine mammals and should be designed
in such a way that minimizes its impact on wildlife and prioritizes the
health of marine ecosystems without resorting to take authorizations.
The goal should be to avoid take altogether, not merely to manage or
mitigate it after the fact. The commenter further asserted that the
precautionary principle demands that we prioritize the protection of
vulnerable marine species, especially in ecologically sensitive areas
like Hood Canal.
Response: Neither the MMPA nor NMFS' implementing regulations
include discussion or requirements related to a ``precautionary
principle.'' NMFS must process requests for incidental take regulations
in a manner consistent with the requirements of section 101(a)(5)(A) of
the MMPA, which establishes specific criteria for when incidental take
must be authorized. NMFS is not required under the MMPA to avoid take
altogether. As described above, NMFS has determined that the planned
activities will have a negligible impact on affected species or stocks.
Furthermore, NMFS has not overlooked the availability of alternatives.
As required under the MMPA, NMFS has prescribed the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat.
The USACE would be unable to conduct their planned construction
activities without being in violation of the MMPA if all incidental
take of marine mammals was prohibited.
Changes From Proposed to Final Rule
The Level 2 Reaction Code in table 4 of this notice has been
revised to include the following language: ``Movements in response to
the source of disturbance, ranging from short withdrawals at least
twice the animal's body length to longer retreats, or if already moving
a change of direction of greater than 90 degrees.'' The text has been
updated from that in the proposed rule to match the most recent
standardized language that is being utilized across all incidental take
authorizations that incorporate the Marine Mammal Reaction Code. The
Marine Mammal Reaction Code is used to classify the response of an
animal to external stimuli. There are no
[[Page 55018]]
substantive changes accompanying the language update.
An incorrect value of 13.1 percent of the percentage of stock taken
was listed in the Small Numbers section of the proposed rule (90 FR
39346). We are making a technical correction to revise this value to
14.3 percent in the Small Numbers section of this notice and in table
3.
The effective dates of the regulations and LOA in the proposed rule
(90 FR 39346) were listed as July 30, 2026, through July 29, 2031.
Because the project has been delayed by one year, we changed the
effective dates to July 9, 2027, through July 8, 2032. Since the
project was delayed for one year, table 3 in this notice, Authorized
Takes by Level B Harassment Annually, covers the years 2027-2030 while
table 3 in the proposed notice covered the years 2026 through 2029 (90
FR 39346).
Under the Monitoring and Reporting section of the proposed rule (90
FR 39346), language pertaining to the reporting of dead or injured
animals was accidentally omitted. The appropriate language has been
included in the Monitoring and Reporting section and regulations in
this final rule. This is standard language included in all incidental
take authorizations where there is the possibility of observing dead or
injured animals and was inadvertently omitted from the proposed rule.
Description of Marine Mammals in the Specified Geographic Region
A single species of marine mammal may be taken by harassment
incidental to the USACE's specified activities. A complete description
of marine mammals status and trends, life history, habitat use, and
threats is included in the USACE's application and NMFS' proposed rule
(90 FR 39346). NMFS is not aware of any new relevant information since
publication of the proposed rule. Please refer to the proposed rule for
detailed descriptions of marine mammals in the project area.
Table 1 lists all species or stocks for which take is expected and
has been authorized by NMFS 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' stock assessment reports). All values presented in table 1 are
the most recent available at the time of publication (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>).
Table 1--Marine Mammal Species \1\ Likely To Occur Near the Project Area That May Be Taken by USACE's Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stock abundance
ESA/MMPA status; (CV, Nmin, most Annual M/
Common name Scientific name Stock strategic (Y/N) recent abundance PBR SI \4\
\2\ survey) \3\
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Order Carnivora--Pinnipedia
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Family Phocidae (earless seals):
Harbor Seal...................... Phoca vitulina.......... Washington Inland Hood -, -, N 3,363 (0.16, 88 2
Canal. 2,940, 2019) \5\
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\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
at: <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 SARs 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.
\5\ These values were presented in the 2023 Draft Marine Mammal SAR. However, the draft 2023 SAR for the Washington Inland Waters harbor seal stocks,
including the Hood Canal stock was not finalized as part of the 2023 Final SAR (89 FR 104989, December 26, 2024) given that the Pearson et al. (2024)
estimates of abundance and trends remain unpublished at the time of publication. This SAR will be revised in a subsequent cycle when the abundance
estimates for these stocks are published. However, this remains the best available information for use in evaluating effects to this stock of harbor
seals.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of visual and acoustic stimuli generated by the
presence and operation of assorted DERP construction equipment as well
as the presence of personnel, has the potential to cause Level B
harassment of pinnipeds in the DERP project area. The proposed rule
included a discussion of the effects of these stimuli from the planned
activities on marine mammals and their habitat (90 FR 39346). There is
no newly available relevant information that would change our analyses
or the results thereof.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
authorized through the LOA, which will inform 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 (16 U.S.C. 1362(18)) 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 would be by Level B harassment only, in the form
of behavioral reactions for individual marine mammals resulting from
exposure to visual or acoustic disturbance associated with various
construction equipment and personnel or protected species observers
(PSOs). Based on the nature of the activity, 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
[[Page 55019]]
describe how the take numbers were estimated.
Acoustic Impacts
There is very limited potential for impacts from underwater noise
to result in harassment of pinnipeds. As noted previously, nearly all
construction would be land-based. Pile driving within a wetted channel
is only planned at a single location among the river channels and other
permanently inundated areas in the project area. A vibratory driver
will be used to remove bridge piers within the wetted river channel
during the demolition of the existing north Highway 101 bridge (see
figure 12 in the USACE's application). The USACE, in consultation with
NMFS, concluded that the meandering path of the river at this location
will adequately prevent direct propagation of underwater noise to the
nearest haulout site and, while it is possible that underwater noise
from pile-driving could potentially result in take, it is not
considered likely and will be adequately addressed through our
consideration of the effects of other, more likely causes of
disturbance to seals.
All other vibratory and impact pile driving will occur on solid
ground and will either occur during low tide or will be isolated from
water using the existing Highway 101 causeway, cofferdams, or aquadams,
thereby dampening propagation of sound through the substrate. For in-
air sounds, NMFS has established a threshold of received levels above
90 dB re 20 [mu]Pa (rms) that could result in behavioral harassment
(Level B harassment) of harbor seals. The actual measured in-air Lmax
(dBA) at 50 feet (15.24 m) for vibratory and impact pile drivers is 101
dB (FHWA 2017). Noise attenuates as the distance from the source of the
noise increases. A general equation shows noise propagation loss as 7.5
dB for each doubling of distance in areas where landscape features and
vegetation exist (WSDOT 2020). Additionally, the following equation can
be used to determine construction noise levels at a specific distance
from the source (WSDOT 2020):
Lmax = the Construction Lmax at 50 feet (15.24 m)-25 * Log(D/Do).
In this equation, Lmax = the highest A-weighted sound level occurring
during a noise event during the time that noise is being measured; 50
feet (15.24 m) = the reference measurement distance; and D = the
distance from the noise source.
Do = the reference measurement distance (50 feet (15.24 m) in this
case). Using this equation, a 101 dB vibratory or impact pile driver
will attenuate to 90 dB after 54 m (177 ft). The nearest vibratory pile
driving site in the project area is about 265 m (870 ft) from known
harbor seal haulout sites at the Duckabush River estuary. Therefore,
Level B harassment from airborne noise could only occur if a seal left
their haulout site and proceeded to within 54 m (177 ft) of an active
pile driving site.
Marine Mammal Occurrence
In this section we provide information about the occurrence of
marine mammals, including abundance or other relevant information which
will inform the take calculations.
WDFW conducts regular aerial surveys of hauled out harbor seals in
the Hood Canal, typically restricting monitoring to the peak of the
pupping period and the window two hours before and after high tides to
maximize the number of individuals on land. The USACE utilized
unpublished WDFW data from 2021-2023 (USACE, 2024) as well as aerial
survey information of hauled out harbor seals at Duckabush River in
2013 and 2014 (Jeffries et al. 2014) to estimate harbor seal abundance.
Table 2 summarizes the results from both surveys.
From 2021-2023, an average of 86 seals hauled out at the Duckabush
River estuary during the pupping season, with a maximum daily count of
130 seals. Harbor seal counts during the molting season peaked at 23
per day although data during this period is limited. Available count
data outside of the critical life history periods of pupping and
molting season is also limited but indicated scarce usage of Duckabush
River estuary haulout sites during the daytime for this period.
Table 2--Harbor Seal Counts at Duckabush Estuary
----------------------------------------------------------------------------------------------------------------
Date Year Pups Adults Total count
----------------------------------------------------------------------------------------------------------------
February 4...................................... 2014 0 0 \a\ 0
March 13........................................ 2013 0 0 \a\ 0
March 21........................................ 2013 0 7 \a\ 7
July 23......................................... 2013 0 0 \a\ 0
August 26....................................... 2013 17 60 \a\ 77
August 27....................................... 2013 21 78 \a\ 99
September 21.................................... 2023 3 127 \b\ 130
September 22.................................... 2023 2 94 \b\ 96
September 28.................................... 2021 2 85 \b\ 87
September 29.................................... 2022 4 111 \b\ 115
October 17...................................... 2023 1 3 \a\ 4
November 6...................................... 2013 0 23 \a\ 23
November 8...................................... 2013 0 13 \a\ 13
----------------------------------------------------------------------------------------------------------------
Count source: \a\--Jeffries et al. (2014),
\b\ --WDFW (unpublished).
Take Estimation
Here, we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and which will be authorized by NMFS.
Since there is no previous data on how harbor seals react to
construction activities at the Duckabush River estuary, take rates from
an analogous project were utilized to estimate take. The Elkhorn Slough
Tidal Marsh Restoration Project in Monterey County, California is a
similar wetland restoration project involving land-based construction
near harbor seal haulout sites (CDFW 2021). NMFS has issued IHAs for
all three phases of this project, all authorizing take by Level B
harassment of harbor seals resulting from similar disturbances as
considered here, including the use of haul trucks, dozers, backhoes,
loaders, and excavators. The objective of both projects is to restore
tidal marshes that have been altered by past land use practices. The
Elkhorn Slough project is in the process of restoring 147 wetland acres
while the DMMP project will
[[Page 55020]]
restore 38 acres. Impacts from both projects include the potential for
Level B harassment of harbor seals by visual disturbance and in-air
noise.
Due to the limited harbor seal survey data at the Duckabush River
estuary, a basic model was used to estimate seal counts throughout the
year. Using the survey data from table 3, it was assumed that there is
an increase or decrease in the number of seals, as defined by use of a
linear function (instead of a block function). This means that every
day of the year has a unique number of seals based on a linear
relationship between a specific date on which a certain number of seals
were actually recorded and the next specific date on which seals were
recorded. For example, in table 2, there were 99 total seals (pups and
adults) recorded on August 27, while 130 total seals were recorded on
September 21. Using a linear relationship, it was assumed that 100.24
seals were observed on August 28 (one day after the date of recording--
August 27 with 99 seals) observation, while 128.76 seals were observed
on September 20 (one day before the next actual date of recording--
September 20 with 130 seals). This methodology allows each day of the
year to have a unique number of assumed seals present. The USACE
developed a detailed project schedule which identified the number of
workdays expected to occur for each year of the planned activity,
ranging from a minimum of 111 days in 2026 to a maximum of 262 days in
2029. The USACE further identified the specific dates of each year that
work is planned. The sum of the number of observed seals associated
with each specified work date was then calculated for each year of the
authorization.
Monitoring reports from the Elkhorn Slough Tidal Marsh Restoration
Project showed that nine percent of harbor seals present were recorded
as takes in Phase I of the Elkhorn Slough Tidal Marsh Restoration
Project while 0.7 percent were recorded as takes in Phase II.
Monitoring data from Phase III of the project is not available, so the
conservative assumption of nine percent take rate were used to estimate
realized take. The sum of the number of assumed seals present
calculated for each year, as described previously, was then multiplied
by nine percent to provide the calculated annual take estimates shown
in table 3.
Table 3--Authorized Takes by Level B Harassment Annually
----------------------------------------------------------------------------------------------------------------
Estimated
NMFS stock Predicted work Predicted Estimated take by Take % of
Year abundance dates work days total seals Level B stock
exposed harassment
----------------------------------------------------------------------------------------------------------------
2027......................... 3,363 July 30- 111 4,883 440 13.1
December 31.
2028......................... .............. January 1- 261 5,331 480 14.3
December 31.
2029......................... .............. January 1- 260 5,310 478 14.2
December 31.
2030......................... .............. January 1- 262 5,090 458 13.6
November 7.
----------------------------------------------------------------------------------------------------------------
To inform both the negligible impact analysis and the small numbers
determination, NMFS assesses the maximum number of takes of marine
mammals that could occur within any given year during the effective LOA
period. In this calculation, the maximum estimated number of Level B
harassment takes in any one year (480 in 2027) is used to yield the
highest number of estimated take that could occur in any year (table
3). Table 3 also depicts the number of takes requested by the USACE and
authorized by NMFS relative to the abundance of the Hood Canal stock.
Mitigation
In order to issue an LOA under section 101(a)(5)(A) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable adverse
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.
The mitigation measures described in the following sections will
apply to the USACE construction activities.
The USACE shall conduct training between supervisors and crews, the
PSO team, and relevant USACE staff prior to the start of DERP
construction so that responsibilities, communication procedures,
monitoring protocols, and operational procedures are clearly
understood. If new construction personnel are added to the project, the
contractor shall ensure that the personnel receive the mandatory
training before starting work.
Visual Monitoring
Required monitoring must be conducted by dedicated, trained, NMFS-
approved PSO(s). PSOs shall establish and monitor a 300-meter zone
around all construction activities. A PSO will be present every day
when construction activities occur in or near the DERP area. A 30-
minute pre-clearance observation period will occur prior to the start
of construction activities. Construction may not start until the work
area is cleared by the PSOs. Monitoring will occur until 30 minutes
after construction is complete. One or more PSOs will be stationed at
location(s) offering the best view of four haulout sites and the
project area as described in the USACE's marine mammal monitoring plan
(MMMP).
If environmental conditions deteriorate such that marine mammals
within the entire shutdown zone (10 m)
[[Page 55021]]
will not be visible (e.g., fog, heavy rain), construction must be
delayed until the PSO is confident marine mammals within the shutdown
zone could be detected.
Pre-Construction Clearance and Ramp-up
A 30-minute pre-clearance observation period must occur prior to
the start of ramp-up and construction activities. The USACE must adhere
to the following pre-clearance and ramp-up requirements: (i)
Construction activities must not be initiated if any marine mammal is
within 10 m of planned operations. If a marine mammal is observed
within 10 m of planned operations during the 30-minute pre-clearance
period, ramp-up must not begin until the animal(s) has been observed
exiting the zones or until an additional time period has elapsed with
no further sightings; and (ii) Construction activities may not be
initiated within 100 meters of a mother-pup pair in the water.
To reduce the risk of potentially startling marine mammals with a
sudden intensive sound, the contractor will ramp-up construction
activities gradually each day by moving around the project area and
starting equipment one at a time.
Shutdown Requirements
For heavy machinery work, if a marine mammal comes within 10 meters
of such operations, operations must cease work or will not be initiated
until the marine mammal has moved outside the 10-meter buffer. During
pupping season (August 1-October 31) construction activities may not be
initiated: (1) Within 300 meters of a mom/pup pair that is hauled out,
or (2) within 100 meters of a mom/pup pair in the water. If a pup less
than 1 week old (neonate) comes within 20 meters of where heavy
machinery is working, construction activities in that area must be shut
down or delayed until the pup has left the area.
Activities must cease if a marine mammal species for which take was
not authorized, or a species for which authorization was granted but
the authorized number of takes have been met, is observed by PSOs
approaching or within the Level B harassment zone. Activities must not
resume until the animal is confirmed to have left the area.
NMFS has determined that the mitigation measures contained within
this final rule will provide the 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.
Monitoring and Reporting
In order to issue an LOA for an activity, section 101(a)(5)(A) 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) require that requests for
authorizations 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
PSO monitoring during construction will occur from vantage points
along the current Highway 101 elevated causeway that allow monitors to
observe any seals hauling out in the estuary as shown in the Marine
Mammal Monitoring Plan. The primary observation locations shall be on
the northern Highway 101 bridge and at the head of the existing estuary
access path that will become the temporary parking platform. Monitors
may also traverse along the Highway 101 causeway to obtain clearer
views of approaching or hauled-out seals, such as from the southern
Highway 101 bridge or North Parking Area. The observation area for the
restoration area shall be accessed by foot and used to provide a
vantage point of the construction area and Duckabush River estuary.
This observation area includes all restoration areas within 300 meters
of harbor seal haulout sites.
The USACE must submit a Marine Mammal Monitoring Plan to NMFS for
approval at least 90 days in advance of construction. Marine mammal
monitoring must be conducted in accordance with the conditions in this
section and the approved Marine Mammal Monitoring Plan. Marine mammal
monitoring during construction activities must be conducted by
qualified, NMFS approved PSOs, in accordance 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 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.
<bullet> PSOs must be approved by NMFS prior to beginning any
activity subject to this rule.
PSOs should 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: (1) the number and species
of marine mammals observed; (2) dates
[[Page 55022]]
and times when in-water construction activities were conducted; (3)
dates, times, and reason for implementation of mitigation (or why
mitigation was not implemented when required); and (4) 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.
Pre- and Post-Construction Daily Censuses
A census of marine mammals in the project area and the area
surrounding the project will be conducted 30 minutes prior to the
beginning of construction on monitoring days, and again 30 minutes
after the completion of construction activities. Data collected during
the pre- and post-construction daily censuses will include:
<bullet> Environmental conditions (weather condition, tidal
conditions, visibility, cloud cover, air temperature and wind speed);
<bullet> Numbers of each marine mammal species spotted;
<bullet> Location of each species spotted, including distance from
construction activity;
<bullet> Status (in water or hauled-out); and
<bullet> Behavior.
Hourly Counts
The USACE will conduct hourly counts of animals hauled out and in
the water. Data collected will include:
<bullet> Numbers of each species;
<bullet> Location of species, whether hauled out or in the water;
and distance from construction activities;
<bullet> Time;
<bullet> Tidal conditions;
<bullet> Time construction activities start and end;
<bullet> Primary construction activities occurring during past
hour;
<bullet> Any noise or visual disturbance;
<bullet> Number of mom/pup pairs and neonates observed; and
<bullet> Notable behaviors, including foraging, grooming, resting,
aggression, mating activity, and others.
PSOs will take notes including any of the following information to
the extent it is feasible to record:
<bullet> Age-class;
<bullet> Sex;
<bullet> Unusual activity or signs of stress; and
<bullet> Any other information worth noting.
PSOs will record reaction observed in relation to construction
activities including:
<bullet> Tally of each reaction;
<bullet> Time of reaction;
<bullet> Concurrent construction activity (including duration) and
assumed cause (whether related to construction activities or not) and
observer determination as to the source of disturbance, to the extent
possible;
<bullet> Location of animal during initial reaction and distance
from the noted disturbance;
<bullet> Direction of movement;
<bullet> Activity before and after disturbance;
<bullet> Status (in water or hauled out) before and after
disturbance; and
<bullet> Coded reaction as shown in table 4.
Table 4--Marine Mammal Reaction Codes
----------------------------------------------------------------------------------------------------------------
Level Type of response Definition
----------------------------------------------------------------------------------------------------------------
1.................................... Alert.................. Head orientation or brief movement in response
to disturbance, which may include turning head
towards the disturbance, craning head and neck
or craning head and neck while holding the body
rigid in a u-shaped position, changing from a
lying to a sitting position, or brief movement
of less than twice the animal's body length.
Alerts would be recorded, but not counted as a
`take'.
2 *.................................. Movement............... Movements in response to the source of
disturbance, ranging from short withdrawals at
least twice the animal's body length to longer
retreats, or if already moving a change of
direction of greater than 90 degrees.
3 *.................................. Flush.................. All retreats (flushes) to the water.
----------------------------------------------------------------------------------------------------------------
* Only Levels 2 and 3 are considered take under the MMPA, whereas Level 1 is not.
Reporting
The USACE must submit a draft monitoring report to NMFS within 90
calendar days of the completion of each construction year. A draft
comprehensive 5-year summary report must also be submitted to NMFS
within 90 days of the end of the effective period of the LOA. The
reports must detail the monitoring protocol and summarize the data
recorded during monitoring. Final annual reports and the final
comprehensive report must be prepared and submitted within 30 days
following resolution of any NMFS comments on the draft report. If no
comments are received from NMFS within 30 days of receipt of the draft
report, the report must be considered final. If comments are received,
a final report addressing NMFS comments must be submitted within 30
days after receipt of comments. The annual and final marine mammal
monitoring reports will 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;
<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: (1) name of PSO who sighted the animal(s) and PSO location
and activity at time of sighting; (2) time of sighting; (3)
identification of the animal(s) (e.g., genus/species, lowest possible
taxonomic level, or unidentified); (4) 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); (5)
estimated number of animals (min/max/best estimate); (6) estimated
number of animals by cohort (e.g., adults, juveniles, neonates, group
composition, etc.); (7) animal's closest point of approach; and (8)
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,
[[Page 55023]]
changing direction, flushing, or breaching);
<bullet> Number of marine mammals detected within the harassment
zones; and
<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.
The following requirement was unintentionally omitted from the
proposed rule. It is included here as well as in the regulatory text.
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the USACE must report the
incident to the Office of Protected Resources (OPR) and the West Coast
regional stranding network as soon as feasible. If the death or injury
was clearly caused by the specified activity, the USACE must
immediately cease the activities until NMFS OPR 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 this
IHA. The USACE must not resume their activities until notified by NMFS.
The report must include the following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
Adaptive Management
The regulations governing the take of marine mammals incidental to
the USACE's construction activities contain an adaptive management
component which was described in detail in the proposed rule and is not
repeated here. The reporting requirements associated with this final
rule are designed to provide NMFS with monitoring data from completed
projects to allow consideration of whether any changes are appropriate.
The use of adaptive management allows NMFS to consider new information
from different sources to determine (with input from the USACE
regarding practicability) on an annual or biennial basis if mitigation
or monitoring measures should be modified (including additions or
deletions). Mitigation measures could be modified if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) any
information which reveals that marine mammals may have been taken in a
manner, extent, or number not authorized by these regulations or LOAs
issued pursuant to these regulations.
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 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).
The USACE has requested, and NMFS is authorizing take, by Level B
harassment, of harbor seals from the Washington Inland Hood Canal
stock. No injuries or mortalities are anticipated to occur as a result
of the DERP project and none are authorized. Effects on individuals
that are taken by Level B harassment, on the basis of reports in the
literature, would likely be localized and limited to reactions such as
alerts or movements away from the construction area, including flushing
into the water. Most likely, individuals, if affected at all will
simply move away from the visual or acoustic stimulus and be
temporarily displaced from the areas.
Repeated exposures of individuals to relatively low levels of
visual and sound disturbance outside of preferred habitat areas are
unlikely to significantly disrupt critical behaviors or result in
permanent abandonment of the haulout site. Even repeated Level B
harassment of some small subset of the overall stock is unlikely to
result in any significant realized decrease in viability for the
affected individuals, and thus would not result in any adverse impact
to the stock as a whole. Level B harassment will be reduced to the
level of least practicable adverse impact through use of mitigation
measures described herein. If visual disturbance and low-level sound
produced by project activities is sufficiently disturbing, animals are
likely to simply avoid the area while the activity is occurring.
No adverse effects to habitat or prey species are anticipated
during or after construction has ended since almost the entirety of
work will be land-based. There is other suitable habitat nearby where
harbor seals could temporarily relocate. The restoration of the marsh
habitat will have no adverse effect on marine mammal habitat, but
possibly a long-term beneficial effect on habitat and harbor seals by
improving ecological function of the slough, including increased prey
availability, higher species diversity, larger fish, and improved
habitat.
Harbor seals are not listed as threatened or endangered under the
ESA and there are no known areas of biological importance in the
project area. Furthermore, the population of the Hood Canal stock of
harbor seals has been relatively stable over the past three decades
(Pearson et al. 2024).
Taking into account the planned mitigation measures, effects to
marine mammals are generally expected to be restricted to short-term
changes in behavior or temporary displacement from haulout sites. There
are other haulout areas for pinnipeds to temporarily relocate, and
marine mammals are expected to return to the area shortly after
activities cease.
In summary and as described above, the following factors primarily
support our determination that the impacts
[[Page 55024]]
resulting from this activity are not expected to adversely affect
harbor seals (or any other species) through effects on annual rates of
recruitment or survival:
<bullet> No serious injury, mortality or Level A harassment is
anticipated or authorized;
<bullet> Effects of the activities will be limited to localized
behavioral changes and temporary displacement;
<bullet> Nominal adverse impacts to pinniped habitat are
anticipated while improved ecological processes in the estuary will
result in positive effects to habitat;
<bullet> No biologically important areas have been identified in
the project area; and
<bullet> Mitigation measures are anticipated to be effective in
minimizing the number and severity of takes by Level B harassment,
which are expected to be localized.
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 required monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
the planned 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 maximum number of individuals
taken in any year 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 maximum annual 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 3 in this notice demonstrates the maximum number of Level B
harassment events per year. Our analysis shows that no more than 14.3
percent of harbor seals could be taken by Level B harassment. The
numbers of animals authorized to be taken for this stock would be
considered small relative to the relevant stock's abundances, even if
each estimated taking occurred to a new individual--an extremely
unlikely scenario.
Based on the analysis contained herein of the planned activity
(including the required 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 will not
have an unmitigable adverse impact on the availability of such species
or stocks for taking for subsistence purposes.
Endangered Species Act (ESA)
Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531 et seq.)
requires that each Federal agency ensure 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 proposed rules, NMFS consults
internally whenever we propose to authorize take for endangered or
threatened species.
No incidental take of ESA-listed species is authorized or expected
to result from 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 (NEPA)
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 the proposed action (i.e., promulgation of
regulations and subsequent issuance of a 5-year LOA) and alternatives
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (Incidental Harassment Authorizations
(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 issuance of the final
rule qualifies to be categorically excluded from further NEPA review.
Classification
Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
final rule is significant under section 3(f) of Executive Order 12866.
USACE's planned activities would support the construction of a new
eight-span Highway 101 bridge across the Duckabush estuary. The
existing bridge crossing will be removed. The activities would create
economic benefits by improving the stream of commerce along Highway
101, which serves as a vital economic lifeline for Washington's Olympic
Peninsula, generating hundreds of millions of dollars annually through
robust tourism and critical freight and commercial transport. USACE
initiated the request for an MMPA incidental take authorization, which
suggests that it is relying on NMFS' authorization to proceed with its
proposed action. While a MMPA incidental take authorization is not a
pre-condition for conducting the proposed action (USACE is ultimately
responsible for this decision), it would provide USACE with two key
benefits: (1) a legal exemption from the MMPA's general prohibition on
the take of marine mammals (assuming USACE complies with the terms and
conditions of its authorization); and (2) regulatory certainty because
USACE will be fully cognizant of NMFS' expectations in regard to the
steps needed to be taken to address risks to marine mammals and how to
minimize its legal exposure under the statute. USACE will also incur
costs to comply with certain mitigation and monitoring requirements, as
required by the MMPA. Despite the additional costs of such measures,
the costs related to MMPA compliance during USACE's activities are
small compared with expenditures on other aspects of construction and
operations, and direct compliance costs of the regulatory requirements
are unlikely to result in material impacts to the project.
In addition, cost savings may be generated by the reduced
administrative effort required to obtain a LOA under the framework
established by a rule compared to what would be required to obtain
annual incidental harassment authorizations (IHA) under section
101(a)(5)(D). Absent the rule, to attain
[[Page 55025]]
equivalent compliance with the MMPA, USACE would need to apply for IHAs
annually over the duration of their activities. Although not monetized,
NMFS' analysis indicates that the upfront work associated with the rule
(e.g., analyses, modeling, process for obtaining an LOA valid for 5
years) likely saves significant time and money for both NMFS and USACE.
In addition, some degree of benefits can be expected to accrue
solely via ecological benefits to marine mammals and other wildlife as
a result of this rulemaking. The published literature is clear that
healthy populations of marine mammals and other co-existing species
benefit regional economies and provide social welfare benefits to
people. However, the literature does not provide a basis for
quantitatively valuing the cost of anticipated incremental changes in
environmental disturbance and marine mammal harassment associated with
the rule.
Executive Order 14192
This rule is considered an Executive Order 14192 deregulatory
action. The promulgation of incidental take regulations under MMPA
section 101(a)(5)(A) of the MMPA allows an otherwise prohibited action
(i.e., the taking of marine mammals), which increases flexibility and
reduces burden.
Regulatory Flexibility Act (RFA)
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA)
(5 U.S.C. 601 et seq.), the Chief Counsel for Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration at the proposed rule stage that this
rule would not have a significant economic impact on a substantial
number of small entities. The USACE is the only entity that will be
subject to the requirements in these regulations. The USACE is not a
small governmental jurisdiction, small organization, or small business
as defined by the RFA. No comments were received that would affect this
certification. Therefore, a regulatory flexibility analysis is not
required and none has been prepared.
Paperwork Reduction Act (PRA)
This final rule does not contain a collection-of-information
requirement subject to the provisions of the Paperwork Reduction Act
(PRA) because the applicant is a Federal agency.
List of Subjects in 50 CFR Part 217
Administrative practice and procedure, Endangered and threatened
species, Fish, Fisheries, Marine mammals, Reporting and recordkeeping
requirements, Wildlife.
Dated: August 21, 2026.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set forth in the preamble, NMFS amends 50 CFR part
217 as follows:
PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
0
1. The authority citation for part 217 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Add subpart Y to part 217 to read as follows:
Subpart Y--Taking of Marine Mammals Incidental to Specified
Activities; Taking Marine Mammals Incidental to the Duckabush
Estuary Restoration Project in Washington
Sec.
217.240 Specified activity and geographical region.
217.241 Effective dates.
217.242 Permissible methods of taking.
217.243 Prohibitions.
217.244 Mitigation requirements.
217.245 Requirements for monitoring and reporting.
217.246 Letters of Authorization.
217.247 Renewals and modifications of Letters of Authorization.
217.248-217.249 [Reserved]
Sec. 217.240 Specified activity and geographical region.
(a) Regulations in this subpart apply only to the United States
Army Corps of Engineers (USACE) and those persons it authorizes or
funds to conduct activities on its behalf for the taking of marine
mammals that occur in the areas outlined in paragraph (b) of this
section and that occur incidental to construction activities, including
maintenance and replacement of piles, as designated in the Duckabush
Estuary Restoration Project in Washington. Requirements imposed on the
USACE pursuant to this subpart must be implemented by those persons it
authorizes or funds to conduct activities on its behalf.
(b) The taking of marine mammals by the USACE may be authorized in
a Letter of Authorization (LOA) only if it occurs as part of the
Duckabush Estuary Restoration Project in Washington.
Sec. 217.241 Effective dates.
Regulations in this subpart are effective from July 9, 2027 through
July 8, 2032.
Sec. 217.242 Permissible methods of taking.
Under an LOA issued pursuant to Sec. Sec. 216.106 of this chapter
and 217.246 of this chapter, the Holder of the LOA (hereinafter
``USACE'') may incidentally, but not intentionally, take marine mammals
within the area described in Sec. 217.240 (b) by harassment associated
with construction activities, provided the activity is in compliance
with all terms, conditions, and requirements of the regulations in this
subpart and the applicable LOA.
Sec. 217.243 Prohibitions.
(a) Except for the takings contemplated in Sec. 217.242 and
authorized by an LOA issued under this subpart, it is unlawful for any
person to do any of the following in connection with the activities
described in Sec. 217.240:
(1) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a LOA issued under this subpart;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner
other than as specified;
(4) Take a marine mammal specified in such LOA if NMFS determines
such taking results in more than a negligible impact on the species or
stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS
determines such taking results in an unmitigable adverse impact on the
species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
Sec. 217.244 Mitigation requirements.
(a) When conducting the activities identified in Sec. 217.240(a),
the mitigation measures contained in any LOA issued under this subpart
must be implemented. These mitigation measures include but are not
limited to:
(1) A copy of this LOA must be in the possession of the USACE,
supervisory construction personnel, lead protected species observers
(PSOs), and any other relevant designees of the USACE operating under
the authority of this LOA at all times that activities subject to this
LOA are being conducted.
(2) The USACE shall conduct training between supervisors and crews,
the PSO team, and relevant USACE staff prior to the start of
construction activity subject to this rule, so that responsibilities,
[[Page 55026]]
communication procedures, monitoring protocols, and operational
procedures are clearly understood. New personnel joining during the
project must be trained in the aforementioned matters prior to
commencing work.
(3) The USACE must employ PSOs and establish monitoring locations
as described in the Marine Mammal Monitoring Plan. The USACE must
monitor the Project Area to the maximum extent possible based on the
required number of PSOs, required monitoring locations, and
environmental conditions.
(4) Monitoring must take place from 30 minutes prior to initiation
of pile driving activity (i.e., pre-start clearance monitoring) through
30 minutes post-completion of construction activity.
(5) Pre-start clearance monitoring must be conducted during periods
of visibility sufficient for the lead PSO to determine that the
shutdown zones are clear of marine mammals. Construction activity may
commence following 30 minutes of observation when the shutdown zones
are clear of marine mammals.
(6) Construction activities must stop if a marine mammal is in a
shutdown zone and may not resume until a marine mammal exits the
shutdown zone.
(7) If construction activity is delayed or halted due to the
presence of a marine mammal, the activity may not commence or resume
until the animal has voluntarily exited and has been visually confirmed
beyond the shutdown zone.
(8) The USACE must conduct a gradual increase (i.e., ramp-up) to
begin construction each day by moving around the project area and
starting equipment one at a time, not all at once.
(9) The USACE must avoid direct physical interaction with marine
mammals during construction activity. If a marine mammal comes within
10 meters (m) of such activity operations must cease to avoid direct
physical interaction and can only resume after the animal has left the
10 m zone.
(10) If a pup less than one week old comes within 20 m of where
heavy machinery is working, operations must cease and can only resume
after the animal has left the 20 m zone.
(11) During pupping season (August 1 through October 31),
construction activities may not be initiated within 300 m of a mom/pup
pair that is hauled out or within 100 m of a mom/pup pair in the water.
(b) [Reserved]
Sec. 217.245 Requirements for monitoring and reporting.
(a) The USACE must submit a Marine Mammal Monitoring Plan to NMFS
for approval at least 90 days in advance of construction. Marine mammal
monitoring must be conducted in accordance with the conditions in this
section and the approved Marine Mammal Monitoring Plan.
(b) Monitoring must be conducted by qualified, NMFS-approved PSOs,
in accordance with the following conditions:
(1) PSOs must be independent of the activity contractor (for
example, employed by a subcontractor) and have no other assigned tasks
during monitoring periods.
(2) 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.
(3) Other PSOs may substitute other relevant experience, education
(i.e., 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.
(4) PSOs must record all observations of marine mammals as
described in the Marine Mammal Monitoring Plan, regardless of distance
from the pile being driven. PSOs shall document any behavioral
reactions in concert with distance from piles being driven or removed.
(c) A census of marine mammals in the project area and the area
surrounding the project must be conducted 30 minutes prior to the
beginning of any construction day, and again 30 minutes after the
completion of construction activities. Data collected during the pre-
and post-construction daily censuses must include:
(1) Environmental conditions (weather condition, tidal conditions,
visibility, cloud cover, air temperature and wind speed);
(2) Numbers of each marine mammal species spotted;
(3) Location of each species spotted, including distance from
construction activity;
(4) Status (in water or hauled-out); and
(5) Behavior.
(d) The USACE must conduct hourly counts of animals hauled out and
in the water. Data collected must include:
(1) Numbers of each species;
(2) Location of species; whether hauled-out or in the water; and
distance from construction activities;
(3) Time;
(4) Tidal conditions;
(5) Time construction activities start and end;
(6) Primary construction activities occurring during past hour;
(7) Any noise or visual disturbance;
(8) Number of mom/pup pairs and neonates observed; and
(9) Notable behaviors, including foraging, grooming, resting,
aggression, mating activity, and others.
(e) The USACE must note any of the following information to the
extent it is feasible to record:
(1) Age-class;
(2) Sex;
(3) Unusual activity or signs of stress; and
(4) Any other information worth noting.
(f) The USACE must record reaction observed in relation to
construction activities including:
(1) Tally of each reaction;
(2) Time of reaction;
(3) Concurrent construction activity (including duration) and
assumed cause (whether related to construction activities or not) and
whether observer feels the disturbance was visual or acoustic;
(4) Location of animal during initial reaction and distance from
the noted disturbance;
(5) Direction of movement;
(6) Activity before and after disturbance;
(7) Status (in water or hauled out) before and after disturbance;
and
(8) Coded reaction of Level 1--Alert; Level 2--Movement, or Level
3--Flush as defined in the Preamble.
(g) The USACE must submit a draft monitoring report to NMFS within
90 calendar days of the completion of each construction year. A draft
comprehensive 5-year summary report must also be submitted to NMFS
within 90 days of the end of the project. The reports must detail the
monitoring protocol and summarize the data recorded during monitoring.
Final annual reports and the final comprehensive report must be
prepared and submitted within 30 days following resolution of any NMFS
comments on the draft report. If no comments are received from NMFS
within 30 days of receipt of the draft report, the report must be
considered final. If comments are received, a final report addressing
NMFS comments must be submitted within 30 days after receipt of
comments. The reports must contain the informational elements described
at minimum below including:
(1) Information collected in Sec. 247.245 (c) through (f).
(2) All PSO datasheets and/or raw sightings data in electronic
format.
[[Page 55027]]
(h) In the event that personnel involved in the construction
activities discover an injured or dead marine mammal, the USACE must
report the incident to the Office of Protected Resources (OPR) and the
West Coast regional stranding network as soon as feasible. If the death
or injury was clearly caused by the specified activity, the USACE must
immediately cease the activities until NMFS OPR 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 this
IHA. The USACE must not resume their activities until notified by NMFS.
The report must include the following information:
(1) Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
(2) Species identification (if known) or description of the
animal(s) involved;
(3) Condition of the animal(s) (including carcass condition if the
animal is dead);
(4) Observed behaviors of the animal(s), if alive;
(5) If available, photographs or video footage of the animal(s);
and
(6) General circumstances under which the animal was discovered.
Sec. 217.246 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the USACE must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, the USACE may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the USACE must
apply for and obtain a modification of the LOA as described in Sec.
217.247.
(e) The LOA must set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA must be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA must be published in the
Federal Register within 30 days of a determination.
Sec. 217.247 Renewals and modifications of Letters of Authorization.
(a) An LOA issued under Sec. 216.106 of this chapter and Sec.
217.246 for the activity identified in Sec. 217.240(a) may be renewed
or modified upon request by the applicant, provided that:
(1) The specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting that do not change the findings made for the regulations or
result in no more than a minor change in the total estimated number of
takes (or distribution by species or years), NMFS may publish a notice
of proposed LOA in the Federal Register, including the associated
analysis of the change, and solicit public comment before issuing the
LOA.
(c) An LOA issued under Sec. Sec. 216.106 of this chapter and
217.246 for the activity identified in Sec. 217.240 (a) may be
modified by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation,
monitoring, or reporting measures (after consulting with USACE
regarding the practicability of the modifications) if doing so creates
a reasonable likelihood of more effectively accomplishing the goals of
the mitigation and monitoring set forth in the preamble for these
regulations;
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from USACE's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or
studies; and
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
must publish a notice of proposed LOA in the Federal Register and
solicit public comment; and
(2) If NMFS determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals specified in a LOA issued pursuant to Sec. 216.106 of this
chapter and Sec. 217.246, a LOA may be modified without prior notice
or opportunity for public comment. Notification would be published in
the Federal Register within 30 days of the action.
Sec. Sec. 217.248-217.249 [Reserved]
[FR Doc. 2026-17391 Filed 8-25-26; 8:45 am]
BILLING CODE 3510-22-P
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