Notice2026-18024
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Oregon Department of Transportation's Yaquina Bay Dolphin Replacement Project in Newport, Oregon
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 3, 2026
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS received a request from the Oregon Department of Transportation (ODOT) for the renewal of their currently active incidental harassment authorization (IHA) to take marine mammals incidental to construction activities for the Yaquina Bay Dolphin Replacement Project in Newport, Oregon. ODOT's activities will not be completed prior to the IHA's expiration. Pursuant to the Marine Mammal Protection Act (MMPA), prior to issuing the currently active IHA, NMFS requested comments on both the proposed IHA and the potential for renewing the initial authorization if certain requirements were satisfied. The renewal requirements have been satisfied, and NMFS is now providing an additional 15-day comment period to allow for any additional comments on the proposed renewal not previously provided during the initial 30-day comment period.
Full Text
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<title>Federal Register, Volume 91 Issue 170 (Thursday, September 3, 2026)</title>
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[Federal Register Volume 91, Number 170 (Thursday, September 3, 2026)]
[Notices]
[Pages 56636-56640]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-18024]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XF624]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Oregon Department of
Transportation's Yaquina Bay Dolphin Replacement Project in Newport,
Oregon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; request for comments on proposed renewal incidental
harassment authorization.
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SUMMARY: NMFS received a request from the Oregon Department of
Transportation (ODOT) for the renewal of their currently active
incidental harassment authorization (IHA) to take marine mammals
incidental to construction activities for the Yaquina Bay Dolphin
Replacement Project in Newport, Oregon. ODOT's activities will not be
completed prior to the IHA's expiration. Pursuant to the Marine Mammal
Protection Act (MMPA), prior to issuing the currently active IHA, NMFS
requested comments on both the proposed IHA and the potential for
renewing the initial authorization if certain requirements were
satisfied. The renewal requirements have been satisfied, and NMFS is
now providing an additional 15-day comment period to allow for any
additional comments on the proposed renewal not previously provided
during the initial 30-day comment period.
DATES: Comments and information must be received no later than
September 18, 2026.
ADDRESSES: Comments should be addressed to the Permits and Conservation
Division, Office of Protected Resources, NMFS, and should be submitted
via email to <a href="/cdn-cgi/l/email-protection#206974700e684f5443484b494e604e4f41410e474f56"><span class="__cf_email__" data-cfemail="105944403e587f6473787b797e507e7f71713e777f66">[email protected]</span></a>. Electronic copies of the original
application, renewal request, and supporting documents (including NMFS'
Federal Register notices of the original proposed and final
authorizations, and the previous IHA), as well as a list of the
references cited in this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/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.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. All comments received are a part of
the public record and will generally be posted online at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> without change. All personal identifying
information (e.g., name, address) voluntarily submitted by the
commenter may be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.
FOR FURTHER INFORMATION CONTACT: Cara Hotchkin, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are proposed or, if the taking is limited to harassment, a notice of a
proposed IHA is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of
[[Page 56637]]
similar significance, and on the availability of such species or stocks
for taking for certain subsistence uses (referred to here as
``mitigation''); and requirements pertaining to the monitoring and
reporting of the takings. The definition of all applicable MMPA
statutory used above are included in the relevant sections below and
can be found in section 3 of the MMPA (16 U.S.C. 1362) and the NMFS's
implementing regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e)
indicate that IHAs may be renewed for additional periods of time not to
exceed one year for each reauthorization. In the notice of proposed IHA
for the initial IHA, NMFS described the circumstances under which we
would consider issuing a renewal for this activity and requested public
comment on a potential renewal under those circumstances. Specifically,
on a case-by-case basis, NMFS may issue a one-time, 1-year renewal of
an IHA following notice to the public providing an additional 15 days
for public comments when (1) up to another year of identical, or nearly
identical, activities as described in the Detailed Description of
Specified Activities section of the initial IHA issuance notice is
planned or (2) the activities as described in the Description of the
Specified Activities and Anticipated Impacts section of the initial IHA
issuance notice would not be completed by the time the initial IHA
expires and a renewal would allow for completion of the activities
beyond that described in the DATES section of the notice of issuance of
the initial IHA, provided all of the following conditions are met:
1. A request for renewal is received no later than 60 days prior to
the needed renewal IHA effective date (recognizing that the renewal IHA
expiration date cannot extend beyond 1 year from expiration of the
initial IHA).
2. The request for renewal must include the following:
<bullet> An explanation that the activities to be conducted under
the requested renewal IHA are identical to the activities analyzed
under the initial IHA, are a subset of the activities, or include
changes so minor (e.g., reduction in pile size) that the changes do not
affect the previous analyses, mitigation and monitoring requirements,
or take estimates (with the exception of reducing the type or amount of
take); and
<bullet> A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
3. Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45
days), with direct notice by email, phone, or postal service to
commenters on the initial IHA, is provided to allow for any additional
comments on the proposed renewal. A description of the renewal process
may be found on our website at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>. Any comments received on the potential renewal, along with
relevant comments on the initial IHA, have been considered in the
development of this proposed IHA renewal, and a summary of agency
responses to applicable comments is included in this notice. NMFS will
consider any additional public comments prior to making any final
decision on the issuance of the requested renewal, and agency responses
will be summarized in the final notice of our decision.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of a renewal
IHA) with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental take authorizations with no
anticipated serious injury or mortality) of the Companion Manual for
NOAA Administrative Order 216-6A, which do not individually or
cumulatively have the potential for significant impacts on the quality
of the human environment and for which we have not identified any
extraordinary circumstances that would preclude this categorical
exclusion. Accordingly, NMFS determined that the issuance of the
initial IHA qualified to be categorically excluded from further NEPA
review. NMFS has preliminarily determined that the application of this
categorical exclusion remains appropriate for this renewal IHA.
History of Request
On September 2, 2025, NMFS issued an IHA to ODOT to take marine
mammals incidental to the Yaquina Bay Dolphin Replacement Project in
Newport, Oregon. The final IHA published in the Federal Register on
September 5, 2025 (90 FR 42935). ODOT requested this IHA be effective
from November 1, 2025 through October 31, 2026. On July 21, 2026, NMFS
received an application for the renewal of that initial IHA, which was
determined to be adequate and complete on August 12, 2026.
As described in the application for renewal IHA, the activities for
which incidental take is requested consist of activities that are
covered by the initial authorization but will not be completed prior to
its expiration. As required, the applicant also provided a preliminary
monitoring report which confirms that the applicant has implemented the
required mitigation and monitoring, and which also shows that no
impacts of a scale or nature not previously analyzed or authorized have
occurred as a result of the activities conducted.
Description of the Specified Activities and Anticipated Impacts
The purpose of the project is to remove and subsequently install
new piles currently being used as part of the pier protection system.
This proposed project will include the removal of 11 dolphins,
consisting of 33 piles via vibratory pile driving and then the
installation of 36 new 16-in (40.64-cm) steel piles, which would make
up 12 new dolphins. Piles will all be ``battered,'' meaning the piles
will be driven at an angle, rather than vertically to provide for
additional lateral resistance to the overall structure. These
replacement piles will be installed somewhat offset from the existing
dolphins to avoid driving piles in previously disturbed sediment, as
geotechnical engineers have confirmed that replacing the dolphins in
the same location as the existing piles would require significantly
deeper embedment to reach fixity. Pile removal and driving will be
accomplished utilizing equipment mounted on a barge using supporting
spuds. Piles will only require vibratory pile driving and will not need
to be ``proofed'' with an impact hammer to further reach stable
installation depth. Instead, ODOT and its contractor(s) will undertake
auger installation to break through any harder substrate, with
vibratory pile driving allowing for the achievement of stable depth.
[[Page 56638]]
Takes of marine mammals by Level B harassment only are expected to
occur as a result of noise produced by the pile driving installation
and removal activities. The initial IHA authorized take incidental to
in-water construction activities associated with the dolphins for the
protection of the pier using vibratory hammers. However, given the
unexpected discovery of harder substrate found under the initial piling
locations, ODOT was unable to penetrate to the appropriate stable
depth, therefore, not able to install piles for the proposed project.
ODOT currently proposes to pre-drill holes followed by vibratory
installation of piles to suitable depth.
Detailed Description of the Activity
A detailed description of the demolition and construction
activities for which take is proposed here may be found in the Federal
Register notices of the proposed (90 FR 34441, July 22, 2025) and final
(90 FR 42935, September 5, 2025) IHAs for the initial authorization.
The location, timing, and nature of the activities, including the types
of equipment planned for use, are identical to those described in the
previous notices, with the exception of auger drilling. Given this, we
do not reiterate description of these aspects of the specified activity
that are unchanged here but instead refer the reader to the original
Federal Register notices for the proposed (90 FR 34441, July 22, 2025)
and final (90 FR 42935, September 5, 2025) actions.
In addition to the methods analyzed under the original IHA, auger
drilling may be used to pre-drill holes in which piles will be placed
and driven to depth with a vibratory hammer. However, auger drilling is
not expected to produce sound that is likely to result in incidental
take of marine mammals due to the relatively low source levels,
position of the sound source in the sediment layers and associated
higher transmission loss, and the industrial nature of the project
location. Drilling is therefore not addressed further in this notice.
The initial IHA authorized take incidental to the in-water
vibratory pile driving removal and installation activities. The project
is anticipated to require approximately 46 days of in-water work, as
shown in table 1. The in-water work window is November through February
(79 days). The proposed renewal would be effective for a period not
exceeding 1 year from the date of expiration of the initial IHA.
Table 1--Pile Parameters for Removal and Installation Via Vibratory Hammer
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Activity duration Maximum piles per day Total number of piles
(minutes per pile) ------------------------------------------------------ Estimated
Pile size and type --------------------------- number of days
Remove Install Remove Install Remove Install of work
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Old piles: 16-inch steel pile (battered)............... 45 ............ 3 ............ 33 ............ 22
New piles: 16-inch steel piles (battered).............. ........... 45 ........... 3 ........... 36 24
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Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which authorization of take is proposed here, including information
on abundance, status, distribution, and hearing, may be found in the
proposed Federal Register for the initial authorization (90 FR 34441,
July 22, 2025). NMFS has reviewed the monitoring data from the initial
IHA, recent Stock Assessment Reports, and other scientific literature,
and determined there is no new information that affects which species
or stocks have the potential to be affected or the pertinent
information in the Description of the Marine Mammals in the Area of
Specified Activities contained in the supporting documents for the
proposed Federal Register for the initial authorization (90 FR 34441,
July 22, 2025).
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat for the activities for which an
authorization of incidental take is proposed here may be found in the
notices of the proposed Federal Register for the initial authorization
(90 FR 34441, July 22, 2025). NMFS has reviewed the monitoring data
from the initial IHA, recent Stock Assessment Reports, and other
scientific literature, and determined that there is no new information
that affects our initial analysis of impacts on marine mammals and
their habitat.
Estimated Take
A detailed description of the methods used to estimate take for the
specified activity are found in the notices of the proposed (90 FR
34441, July 22, 2025) and final (90 FR 42935, September 5, 2025)
actions. Specifically, the action area and marine mammal density/
occurrence data applicable to this authorization remain unchanged from
the initial Federal Register notices. Similarly, source levels, type of
activity (i.e., vibratory pile driving), methods of take, take of
species/stock, and types of take remain unchanged from the initial
Federal Register notices. The estimated number of takes proposed for
authorization is a subset of those authorized in the initial IHA.
Estimated take by Level B harassment for the proposed renewal was
calculated using the same methodology as in the initial proposed (90 FR
34441, July 22, 2025) and final IHAs (90 FR 42935, September 5, 2025),
as shown in table 2.
As required for an IHA renewal, ODOT submitted preliminary
monitoring data gathered during the 2025-2026 work period. In-water
work was conducted for 4 hours on a single day in January. During that
time, PSOs documented 24 sightings of 46 individual California sea
lions and 7 sightings of 7 individual harbor seals. Of these, 37
California sea lions and 3 harbor seals were sighted during vibratory
pile driving.
[[Page 56639]]
Table 2--Proposed Take By Stock, Harassment Type, and as a Percentage of Stock Abundance
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Initial authorized take Proposed renewal
Estimated Estimated Days of --------------------------------------------------
Species\a\ Stock stock group size noise Authorized Proposed
abundance per day exposure Authorized stock Proposed stock
take \c\ percentage take \c\ percentage
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Harbor Porpoise....................... Northern California/ 15,303 2 46 92 0.6 92 0.6
Southern Oregon.
Steller Sea Lion...................... Eastern DPS.............. 36,308 2 46 92 0.25 92 0.25
California Sea Lion................... United States............ 257,606 500 46 23,000 8.93 22,963 8.91
Harbor Seal........................... Oregon/Washington Coast.. 22,549 60 46 2,760 12.24 2,757 12.22
Northern Elephant Seal................ California Breeding...... 194,907 \b\0.5 46 23 0.01 23 0.01
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\a\ No take was requested or authorized initially for gray whales, humpback whales, or killer whales as the applicant intends to shut down if any are
observed near the project area. Therefore, no take has been proposed for authorization under this renewal and these species are not shown here.
\b\ One individual assumed present on half of the days.
\c\ All takes estimated by Level B Harassment only. No take by Level A harassment is expected and none is proposed for authorization.
Description of Proposed Mitigation, Monitoring and Reporting Measures
The proposed mitigation, monitoring, and reporting measures
included as requirements in this authorization are identical to those
included in the Federal Register notice announcing the issuance of the
initial proposed IHA (90 FR 34441, July 22, 2025), and the discussion
of the least practicable adverse impact included in that document
remains accurate. The following measures are proposed for this renewal:
<bullet> ODOT must employ NMFS-approved PSOs and establish
monitoring locations to the maximum extent possible based on the
required number of PSOs, required monitoring locations, and
environmental conditions, as described in ODOT's Marine Mammal
Monitoring Plan (see NMFS' website: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-oregon-department-transportations-yaquina-bay-dolphin">https://www.fisheries.noaa.gov/action/incidental-take-authorization-oregon-department-transportations-yaquina-bay-dolphin</a>);
<bullet> Monitoring must take place from 30 minutes prior to
initiation of vibratory pile driving activity (i.e., pre-start
clearance monitoring) through 30 minutes post completion of pile
driving activity;
<bullet> Pre-start clearance monitoring must be conducted during
periods of visibility sufficient for the PSO(s) to determine that the
shutdown zones are clear of marine mammals;
<bullet> If a marine mammal is observed entering or within the
shutdown zones pile driving activity must be delayed or halted;
<bullet> If pile driving is delayed or halted due to the presence
of a marine mammal, the activity may not commence or resume until
either the animal has voluntarily exited and been visually confirmed
beyond the required shutdown zones or 15 minutes have passed without
redetection of the animal;
<bullet> Pile driving activity must be halted upon observation of
either a species for which incidental take is not authorized or a
species for which incidental take has been authorized but the
authorized number of takes has been met, entering or within the
harassment zone;
<bullet> ODOT must shut down vibratory pile installation and
removal activities if a marine mammal comes within 28 meters (m) (92
feet (ft)) during pile driving or extraction;
<bullet> ODOT must shut down other construction operations if a
marine mammal comes within 10 m (32.8 ft) of construction activity to
avoid direct physical interaction with marine mammals;
<bullet> ODOT must submit a draft marine mammal monitoring report
to NMFS within 90 days after the completion of pile driving activities.
A final report must be prepared and submitted within 30 calendar days
following receipt of any NMFS comments on the draft report; and
<bullet> All injured or dead marine mammals must be reported to the
Office of Protected Resources (<a href="/cdn-cgi/l/email-protection#e6b6b4c8afb2b6c8ab89888f9289948f8881b4839689949295a688898787c8818990"><span class="__cf_email__" data-cfemail="8ededca0c7dadea0c3e1e0e7fae1fce7e0e9dcebfee1fcfafdcee0e1efefa0e9e1f8">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#91d8c5c1bfd9fee5f2f9faf8ffd1fffef0f0bff6fee7"><span class="__cf_email__" data-cfemail="256c71750b6d4a51464d4e4c4b654b4a44440b424a53">[email protected]</span></a>) and to the NOAA West Coast Regional Stranding
Coordinator (1-866-767-6114; more information found on NMFS' website:
<a href="https://www.fisheries.noaa.gov/westcoast/marine-mammal-protection/west-coast-marine-mammal-stranding-network">https://www.fisheries.noaa.gov/westcoast/marine-mammal-protection/west-coast-marine-mammal-stranding-network</a>).
Comments and Responses
As noted previously, NMFS published a Federal Register notice
announcing the proposed IHA (90 FR 34441, July 22, 2025) and solicited
public comments on both our proposal to issue the initial IHA for
ODOT's Yaquina Bay Dolphin Replacement Project in Newport, Oregon and
on the potential for a renewal IHA, should certain requirements be met.
No public comments were received following the notice announcing the
proposed issuance of the initial IHA (90 FR 34441, July 22, 2025).
Preliminary Determinations
This proposed action is identical to that of the initial
authorization in terms of effects (90 FR 34441, July 22, 2025; 90 FR
42935, September 5, 2025). The same marine mammals are affected, and
the potential effects and estimated take are a subset of those
authorized in the initial IHA. Mitigation and monitoring remain the
same as the initial authorization. The extensive analysis, as well as
the associated findings included in the prior documents remain
applicable.
Given this, NMFS has preliminarily concluded that there is no new
information suggesting that our analysis or findings should change from
those reached for the initial IHA. Based on the information and
analysis contained here and in the referenced documents, NMFS has
determined the following: (1) the required mitigation measures will
effect the least practicable impact on marine mammal species or stocks
and their habitat; (2) the authorized takes will have a negligible
impact on the affected marine mammal species or stocks; (3) the
authorized takes represent small numbers of marine mammals relative to
the affected stock abundances; (4) ODOT's activities will not have an
unmitigable adverse impact on taking for subsistence purposes as no
relevant subsistence uses of marine mammals are implicated by this
action, and; (5) appropriate monitoring and reporting requirements are
included.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 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
[[Page 56640]]
designated critical habitat. To ensure ESA compliance for the issuance
of IHAs, NMFS consults internally whenever we propose to authorize take
for endangered or threatened species.
No incidental take of ESA-listed species is proposed for
authorization or expected to result from this activity. Therefore, NMFS
has determined that formal consultation under section 7 of the ESA is
not required for this proposed action.
Proposed Renewal IHA and Request for Public Comment
As a result of these preliminary determinations, NMFS proposes to
issue a renewal IHA to ODOT for conducting construction activities for
the Yaquina Bay Dolphin Replacement Project in Newport, Oregon from
November 1, 2026, through October 31, 2027, provided the previously
described mitigation, monitoring, and reporting requirements are
incorporated. The initial IHA can be found at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-oregon-department-transportations-yaquina-bay-dolphin">https://www.fisheries.noaa.gov/action/incidental-take-authorization-oregon-department-transportations-yaquina-bay-dolphin</a>. We request comment on
our analyses contained herein and within the original actions (90 FR
34441, July 22, 2025; 90 FR 42935, September 5, 2025), the proposed
renewal IHA, and any other aspect of this notice. Please include with
your comments any supporting data or literature citations to help
inform our final decision on the request for this renewal IHA.
Dated: August 31, 2026.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2026-18024 Filed 9-2-26; 8:45 am]
BILLING CODE 3510-22-P
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