[Federal Register Volume 79, Number 190 (Wednesday, October 1, 2014)]
[Notices]
[Pages 59228-59238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23338]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD341


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to a Marina Reconstruction Project

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to the 
Port of Friday Harbor, WA (Port) to incidentally harass, by Level B 
harassment only, five species of marine mammals during construction 
activities associated with a marina reconstruction project at Friday 
Harbor, Washington.

DATES: This authorization is effective from September 3, 2014, through 
February 15, 2015.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401.

[[Page 59229]]


SUPPLEMENTARY INFORMATION:

Availability

    An electronic copy of the Port's application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing 
these documents, please call the contact listed above (see FOR FURTHER 
INFORMATION CONTACT).

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization 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), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of 
an application followed by a 30-day public notice and comment period on 
any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization. Except with respect to certain 
activities not pertinent here, the MMPA defines ``harassment'' as ``any 
act of pursuit, torment, or annoyance which (i) has the potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
harassment]; or (ii) has the potential to disturb a marine mammal or 
marine mammal stock in the wild by causing disruption of behavioral 
patterns, including, but not limited to, migration, breathing, nursing, 
breeding, feeding, or sheltering [Level B harassment].''

Summary of Request

    On August 12, 2013, we received a request from the Port for 
authorization to take marine mammals incidental to pile driving and 
removal associated with the reconstruction of a marina at Friday 
Harbor, WA. The Port submitted revised versions of the request on 
February 28, 2014, June 4, 2014, and June 11, 2014, the last of which 
we deemed adequate and complete. The Port plans to conduct in-water 
work that may incidentally harass marine mammals (i.e., pile driving 
and removal) during a portion of the in-water work window established 
to protect fish species. This IHA is valid from September 3, 2014, 
through February 15, 2015. Hereafter, use of the generic term ``pile 
driving'' may refer to both pile installation and removal unless 
otherwise noted.
    The use of vibratory pile driving is expected to produce underwater 
sound at levels that have the potential to result in behavioral 
harassment of marine mammals. Species with the expected potential to be 
present during all or a portion of the in-water work window include the 
Steller sea lion (Eumetopias jubatus monteriensis), California sea lion 
(Zalophus californianus), harbor seal (Phoca vitulina richardii), 
Dall's porpoise (Phocoenoides dalli dalli), and harbor porpoise 
(Phocoena phocoena vomerina). These species may occur year-round in the 
vicinity of Friday Harbor, with the exception of the Steller and 
California sea lions, which are generally absent during summer. The 
Steller sea lion is present from fall to late spring (approximately 
October to May), while the California sea lion is generally absent only 
from approximately mid-June to August.

Description of the Specified Activity

Overview

    The Port has determined that reconstruction of the marina is 
necessary due to the increasing age of the existing structures. Repair 
and replacement work is necessary in order to maintain the existing 
purpose of the marina, which provides access, permanent and 
short[hyphen]term moorage and berthing opportunities, and marina 
support facilities to commercial and recreational boaters. A vibratory 
hammer will be used to extract existing timber piles. Broken and 
damaged pilings unable to be removed with the vibratory hammer may need 
to be removed with a clamshell bucket. All new piles will be driven 
with a vibratory hammer, to the extent possible. If vibratory driving 
is not effective for any given pile (i.e., due to substrate 
conditions), piles may be installed via confined drilling. No impact 
pile driving is planned for this project. The Port does not plan to 
operate multiple pile driving rigs concurrently.

Dates and Duration

    The allowable season for in-water work, including pile driving, in 
the vicinity of Friday Harbor is July 16 through February 15, a window 
established by the Washington Department of Fish and Wildlife in 
coordination with NMFS and the U.S. Fish and Wildlife Service to 
protect salmonid fish. The action will occur only during a portion of 
that window, from approximately September 1, 2014, through February 15, 
2015. The Port expects to require three days for pile removal and a 
maximum of 26 days for pile installation, for a total of 29 days during 
this period. Pile driving and removal may occur on any day during the 
specified period, only during daylight hours.

Specific Geographic Region

    The Port of Friday Harbor Marina is located at Friday Harbor, WA, 
on the eastern shore of San Juan Island (see Figure 1-1 of the Port's 
application). Friday Harbor is approximately 111 km north of Seattle, 
WA and 52 km southeast of Victoria, BC. The Town of Friday Harbor is 
located directly adjacent to the marina. Please refer to the U.S. 
Navy's Marine Resource Assessment for the Pacific Northwest, which 
documents and describes the marine resources that occur in Navy 
operating areas of the Pacific Northwest, including Puget Sound (DoN, 
2006), for additional information regarding physical and oceanographic 
characteristics of the region. The document is publicly available at 
www.navfac.navy.mil/products_and_services/ev/products_and_services/marine_resources/marine_resource_assessments.html (accessed June 16, 
2014).

Detailed Description of Activities

    We provided a detailed description of the proposed action in our 
Federal Register notice announcing the proposed authorization (79 FR 
43402; July 25, 2014). Please refer to that document; we provide only 
summary information here. The marina

[[Page 59230]]

reconstruction project will entail repair and replacement of portions 
of the existing floats, piles, and walkways. Specifically, the Port 
plans to replace existing dilapidated finger and main walkway floats, 
treated timber walers (i.e., structural beams typically mounted to 
floating docks), and a steel footbridge, and to repair certain existing 
treated timber piles and bracing and install some new floats. In 
addition, the Port plans to remove 95 creosoted timber piles (diameters 
range from 12-20 inches) and replace these with 52 steel pipe piles 
(twenty at 16-in diameter and 32 at 24-in diameter). Only the removal 
and installation of piles carries the potential for incidental take of 
marine mammals, and is considered further in this document. The Port 
plans to remove existing treated timber piles using vibratory 
extraction and to install new piles using a vibratory driver as well, 
to the extent possible.

Comments and Responses

    We published a notice of receipt of the Port's application and 
proposed IHA in the Federal Register on July 25, 2014 (79 FR 43402). 
During the 30-day public comment period, we received a letter from the 
Marine Mammal Commission, which recommended that we require the Port to 
re-estimate the number of harbor seal takes using an area-specific 
haul-out correction factor rather than a pooled regional correction 
factor (Huber et al., 2001). The Commission also referenced a prior 
proposal to discuss appropriate use of available information for harbor 
seals in Washington inland waters (see 79 FR 43432). After having that 
discussion with the Commission, we determined it was appropriate for 
this particular activity in this particular location to recalculate 
harbor seal takes using an area-specific haul-out correction factor. We 
also agreed that we would consider the most appropriate use of 
available information for harbor seals (e.g., use of pooled regional 
haul-out correction factors versus area-specific factors) in Washington 
inland waters on a case-by-case basis in the future. See the 
Commission's letter (available on the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm) for specific detail regarding 
the recommendation and ``Estimated Take by Incidental Harassment'', 
later in this document, for specific detail regarding the revised take 
estimate for harbor seals.

Description of Marine Mammals in the Area of the Specified Activity

    There are eleven marine mammal species known to occur in the San 
Juan Islands region of Washington inland waters, including seven 
cetaceans and four pinnipeds. The harbor seal is a year-round resident 
in Washington waters, while the Steller sea lion and California sea 
lion are seasonally present. Dall's porpoises and harbor porpoises may 
also occur with year-round regularity in the San Juan Islands. 
Remaining species that could occur in the project area include the 
killer whale (Orcinus orca; both transient and resident ecotypes), 
humpback whale (Megaptera novaeangliae), gray whale (Eschrichtius 
robustus), minke whale (Balaenoptera acutorostrata scammoni), northern 
elephant seal (Mirounga angustirostris), and the Pacific white-sided 
dolphin (Lagenorhynchus obliquidens). While these latter six species 
could occur in the project area, we do not believe that such occurrence 
is sufficiently likely to present a reasonable likelihood of take 
incidental to the specified activity. For more detail, please see the 
``Monitoring and Reporting'' and ``Estimated Take by Incidental 
Harassment'' sections later in this document.
    We have reviewed the Port's detailed species descriptions, 
including life history information, for accuracy and completeness and 
refer the reader to Section 3 of the Port's application instead of 
reprinting the information here. Please also refer to NMFS' Web site 
(www.nmfs.noaa.gov/pr/species/mammals) for generalized species accounts 
and to the Navy's Marine Resource Assessment for the Pacific Northwest, 
which provides information regarding the biology and behavior of the 
marine resources that occur in Navy operating areas of the Pacific 
Northwest, including the San Juan Islands (DoN, 2006). The document is 
publicly available at www.navfac.navy.mil/products_and_services/ev/products_and_services/marine_resources/marine_resource_assessments.html (accessed June 16, 
2014). We provided additional information for the potentially affected 
stocks, including details of stock-wide status, trends, and threats, in 
our Federal Register notice of proposed authorization (79 FR 43402; 
July 25, 2014).
    Table 1 lists the twelve marine mammal stocks that could occur in 
the vicinity of Friday Harbor during the project timeframe and 
summarizes key information regarding stock status and abundance. 
Taxonomically, we follow Committee on Taxonomy (2014). Please see NMFS' 
Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars, 
for more detailed accounts of these stocks' status and abundance. All 
stocks are addressed in the Pacific SARs (Carretta et al., 2014), with 
the exception of the Steller sea lion and transient killer whale, which 
are treated in the Alaska SARs (Allen and Angliss, 2014).

                                      Table 1--Marine Mammals Potentially Present in the Vicinity of Friday Harbor
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            ESA/MMPA
                                                             status;     Stock abundance (CV, Nmin, most               Annual  M/   Relative occurrence
              Species                       Stock           strategic     recent abundance survey) \2\       PBR \3\     SI \4\    in San Juan  Islands;
                                                            (Y/N) \1\                                                               season of occurrence
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae:
    Gray whale....................  Eastern North Pacific        -; N        19,126 (0.071; 18,017; 2007)         558    \12\ 127  Seasonal to rare;
                                                                                                                                    more likely winter
                                                                                                                                    to spring.
Family Balaenopteridae (rorquals):
    Humpback whale................  California/Oregon/         E/D; Y           1,918 (0.03; 1,855; 2011)     \10\ 22       >=5.5  Seasonal to rare with
                                     Washington (CA/OR/                                                                             highest likelihood
                                     WA).                                                                                           spring to fall.

[[Page 59231]]

 
    Minke whale...................  CA/OR/WA.............        -; N               478 (1.36; 202; 2008)           2           0  Seasonal; more likely
                                                                                                                                    spring to fall.
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                            Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Pacific white-sided dolphin...  CA/OR/WA.............        -; N         26,930 (0.28; 21,406; 2008)         171        17.8  Rare but more likely
                                                                                                                                    summer and fall.
    Killer whale \5\..............  West coast transient         -; N                     243 (n/a; 2006)         2.4           0  Likely to rare.
                                     \6\.
                                    Eastern North Pacific      E/D; Y                      85 (n/a; 2012)        0.14           0  Likely to rare.
                                     southern resident.
Family Phocoenidae (porpoises):
    Harbor porpoise...............  Washington inland            -; N          10,682 (0.38; 7,841; 2003)          63       >=2.2  Likely to rare.
                                     waters \7\.
    Dall's porpoise...............  CA/OR/WA.............        -; N         42,000 (0.33; 32,106; 2008)         257       >=0.4  Likely to rare.
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                                                         Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
 sea lions):
    California sea lion...........  U.S..................        -; N        296,750 (n/a; 153,337; 2008)       9,200       >=431  Seasonal/common; not
                                                                                                                                    generally present in
                                                                                                                                    Jul.
    Steller sea lion..............  Eastern U.S..........    \8\ -; N     \9\ 63,160-78,198 (n/a; 57,966;  \11\ 1,552        65.1  Seasonal; not
                                                                                                 2008-11)                           generally present
                                                                                                                                    Jun-Sep.
Family Phocidae (earless seals):
    Harbor seal...................  Washington inland            -; N         14,612 (0.15; 12,844; 1999)         771        13.4  Common; Year-round
                                     waters \7\.                                                                                    resident.
    Northern elephant seal........  California breeding..        -; N         124,000 (n/a; 74,913; 2005)       4,382      >=10.4  Likely to rare.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (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 (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
  or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For killer whales, the
  abundance values represent direct counts of individually identifiable animals; therefore there is only a single abundance estimate with no associated
  CV. For certain stocks of pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction
  factor derived from knowledge of the specie's (or similar species') life history to arrive at a best abundance estimate; therefore, there is no
  associated CV. In these cases, the minimum abundance may represent actual counts of all animals ashore.
\3\ Potential biological removal, 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 size (OSP).
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value.
\5\ Transient and resident killer whales are considered unnamed subspecies.
\6\ The abundance estimate for this stock includes only animals from the ``inner coast'' population occurring in inside waters of southeastern Alaska,
  British Columbia, and Washington--excluding animals from the ``outer coast'' subpopulation, including animals from California--and therefore should be
  considered a minimum count. For comparison, the previous abundance estimate for this stock, including counts of animals from California that are now
  considered outdated, was 354.
\7\ Abundance estimates for these stocks are greater than eight years old and are therefore not considered current. PBR is considered undetermined for
  these stocks, as there is no current minimum abundance estimate for use in calculation. We nevertheless present the most recent abundance estimates
  and PBR values, as these represent the best available information for use in this document.
\8\ The eastern distinct population segment of the Steller sea lion, previously listed under the ESA as threatened, was delisted on December 4, 2013 (78
  FR 66140; November 4, 2013). Because this stock is not below its OSP size and the level of direct human-caused mortality does not exceed PBR, this
  delisting action implies that the stock is no longer designated as depleted or as a strategic stock under the MMPA.
\9\ Best abundance is calculated as the product of pup counts and a factor based on the birth rate, sex and age structure, and growth rate of the
  population. A range is presented because the extrapolation factor varies depending on the vital rate parameter resulting in the growth rate (i.e.,
  high fecundity or low juvenile mortality).
\10\ This stock is known to spend a portion of time outside the U.S. EEZ. Therefore, only a portion of the PBR presented here is allocated for U.S.
  waters. U.S. PBR allocation is half the total for humpback whales (11).
\11\ PBR is calculated for the U.S. portion of the stock only (excluding animals in British Columbia) and assumes that the stock is not within its OSP.
  If we assume that the stock is within its OSP, PBR for the U.S. portion increases to 2,069.
\12\ Includes annual Russian harvest of 123 whales.


[[Page 59232]]

Potential Effects of the Specified Activity on Marine Mammals

    Our Federal Register notice of proposed authorization (79 FR 43402; 
July 25, 2014), incorporated here by reference, provides a general 
background on sound relevant to the specified activity as well as a 
detailed description of marine mammal hearing and of the potential 
effects of these construction activities on marine mammals.

Anticipated Effects on Habitat

    We described potential impacts to marine mammal habitat in detail 
in our Federal Register notice of proposed authorization (79 FR 43402; 
July 25, 2014). In summary, we have determined that given the short 
daily duration of sound associated with individual pile driving events, 
the relatively small areas being affected, and the absence of impact 
pile driving, pile driving activities associated with the proposed 
action are not likely to have a permanent, adverse effect on any fish 
habitat, or populations of fish species. The area around the Port, 
including the adjacent ferry terminal and the marina, is subject to 
significant levels recreational activity and ferry traffic, and is 
unlikely to harbor significant amounts of forage fish. Thus, any 
impacts to marine mammal habitat are not expected to cause significant 
or long-term consequences for individual marine mammals or their 
populations.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, ``and other means of effecting the least practicable impact 
on such species or stock and its habitat, paying particular attention 
to rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking'' for certain 
subsistence uses.
    Measurements from similar pile driving events were coupled with 
practical spreading loss to estimate zones of influence (ZOI; see 
``Estimated Take by Incidental Harassment''). ZOIs are often used to 
establish a mitigation zone around each pile (when deemed practicable) 
to prevent Level A harassment to marine mammals, and also provide 
estimates of the areas within which Level B harassment might occur. 
ZOIs may vary between different diameter piles and types of 
installation methods. In addition to the measures described later in 
this section, the Port will employ the following standard mitigation 
measures:
    (a) Conduct briefings between construction supervisors and crews, 
marine mammal monitoring team, and Port staff prior to the start of all 
pile driving activity, and when new personnel join the work, in order 
to explain responsibilities, communication procedures, marine mammal 
monitoring protocol, and operational procedures.
    (b) For in-water heavy machinery work other than pile driving 
(using, e.g., standard barges, tug boats, barge-mounted excavators, or 
clamshell equipment used to place or remove material), if a marine 
mammal comes within 10 m, operations shall cease and vessels shall 
reduce speed to the minimum level required to maintain steerage and 
safe working conditions. This type of work could include the following 
activities: (1) Movement of the barge to the pile location; (2) 
positioning of the pile on the substrate via a crane (i.e., stabbing 
the pile); or (3) removal of the pile from the water column/substrate 
via a crane (i.e., deadpull). For these activities, monitoring will 
take place from fifteen minutes prior to initiation until the action is 
complete.

Monitoring and Shutdown for Pile Driving

    The following measures apply to the Port's mitigation through 
shutdown and disturbance zones:
    Shutdown Zone--For all pile driving activities, the Port will 
establish a shutdown zone. Shutdown zones are often used to bound the 
area in which SPLs equal or exceed the 180/190 dB root mean square 
(rms) acoustic injury criteria, with the purpose being to define an 
area within which shutdown of activity would occur upon sighting of a 
marine mammal (or in anticipation of an animal entering the defined 
area), thus preventing injury of marine mammals. However, the Port's 
activities are not expected to produce sound at or above the 180 dB rms 
injury criterion (see ``Estimated Take by Incidental Harassment''). The 
Port will, however, implement a minimum shutdown zone of 10 m radius 
for all marine mammals around all pile driving and removal activity. 
These precautionary measures are intended to further reduce the 
unlikely possibility of injury from direct physical interaction with 
construction operations.
    Disturbance Zone--Disturbance zones are the areas in which SPLs 
equal or exceed 120 dB rms for pile driving installation and removal, 
corresponding to our current criterion for Level B harassment from 
continuous sound sources. Disturbance zones provide utility for 
monitoring conducted for mitigation purposes (i.e., shutdown zone 
monitoring) by establishing monitoring protocols for areas adjacent to 
the shutdown zones. Monitoring of disturbance zones enables observers 
to be aware of and communicate the presence of marine mammals in the 
project area but outside the shutdown zone and thus prepare for 
potential shutdowns of activity. However, the primary purpose of 
disturbance zone monitoring is for documenting incidents of Level B 
harassment; disturbance zone monitoring is discussed in greater detail 
later (see ``Monitoring and Reporting''). Nominal radial distances for 
disturbance zones are shown in Table 2. Given the size of the 
disturbance zone for vibratory pile driving, it is impossible to 
guarantee that all animals would be observed or to make comprehensive 
observations of fine-scale behavioral reactions to sound. We discuss 
monitoring objectives and protocols in greater depth in ``Monitoring 
and Reporting.''
    In order to document observed incidents of harassment, monitors 
record all marine mammal observations, regardless of location. The 
observer's location, as well as the location of the pile being driven, 
is known from a GPS. The location of the animal is estimated as a 
distance from the observer, which is then compared to the location from 
the pile and the estimated ZOIs for relevant activities (i.e., pile 
installation and removal). This information may then be used to 
extrapolate observed takes to reach an approximate understanding of 
actual total takes.
    Monitoring Protocols--Monitoring will be conducted before, during, 
and after pile driving and removal activities. In addition, observers 
shall record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from piles being driven. Observations made 
outside the shutdown zone will not result in shutdown; that pile 
segment would be completed without cessation, unless the animal 
approaches or enters the shutdown zone, at which point all pile driving 
activities would be halted. Monitoring will take place from fifteen 
minutes prior to initiation through thirty minutes post-completion of 
pile driving activities. Pile driving activities include the time to 
remove a single pile or series of piles, as long as the time elapsed 
between uses of the pile driving equipment is no more than thirty 
minutes. Please see the Marine Mammal Monitoring Plan (available at 
www.nmfs.noaa.gov/pr/permits/incidental/construction.htm), developed

[[Page 59233]]

by the Port with our approval, for full details of the monitoring 
protocols.
    The following additional measures apply to visual monitoring:
    (1) Monitoring will be conducted by qualified observers, who will 
be placed at the best vantage point(s) practicable to monitor for 
marine mammals and implement shutdown/delay procedures when applicable 
by calling for the shutdown to the hammer operator. Qualified observers 
are trained biologists, with the following minimum qualifications:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
     Advanced education in biological science or related field 
(undergraduate degree or higher required);
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior; and
     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.
    (2) Prior to the start of pile driving activity, the shutdown zone 
will be monitored for fifteen minutes to ensure that it is clear of 
marine mammals. Pile driving will only commence once observers have 
declared the shutdown zone clear of marine mammals; animals will be 
allowed to remain in the shutdown zone (i.e., must leave of their own 
volition) and their behavior will be monitored and documented. The 
shutdown zone may only be declared clear, and pile driving started, 
when the entire shutdown zone is visible (i.e., when not obscured by 
dark, rain, fog, etc.). In addition, if such conditions should arise 
during impact pile driving that is already underway, the activity would 
be halted.
    (3) If a marine mammal approaches or enters the shutdown zone 
during the course of pile driving operations, activity will be halted 
and delayed until either the animal has voluntarily left and been 
visually confirmed beyond the shutdown zone or fifteen minutes have 
passed without re-detection of the animal. Monitoring will be conducted 
throughout the time required to drive a pile.

Special Conditions

    The Port did not request the authorization of incidental take for 
any species of whale (as noted previously, gray whales, humpback 
whales, minke whales, and transient or resident killer whales have the 
potential to occur in the project vicinity--see discussion below in 
``Estimated Take by Incidental Harassment''). Therefore, shutdown will 
be implemented in the event that any of these species is observed in 
the vicinity, prior to entering the defined disturbance zone. As 
described later in this document, we believe that occurrence of these 
species during the in-water work window would be uncommon and that the 
occurrence of an individual or group would likely be highly noticeable 
and would attract significant attention in local media and with local 
whale watchers and interested citizens.
    Prior to the start of pile driving on any day, the Port will 
contact and/or review the latest sightings data from the Orca Network 
and/or Center for Whale Research to determine the location of the 
nearest marine mammal sightings. The Orca Sightings Network consists of 
a list of over 600 residents, scientists, and government agency 
personnel in the U.S. and Canada, and includes passive acoustic 
detections. The presence of whales typically draws public attention and 
media scrutiny. With this level of coordination in the region of 
activity, the Port should be able to effectively receive real-time 
information on the presence or absence of whales, sufficient to inform 
the day's activities. Pile driving will not occur if there was the risk 
of incidental harassment of a species for which incidental take was not 
authorized.
    As described in the monitoring plan, a minimum of two shore-based 
observers and two vessel-based monitoring platforms (each with two 
observers aboard) will be deployed during pile driving activity. If any 
species for which take is not authorized is detected, activity will not 
begin or will shut down.

Timing Restrictions

    In the San Juan Islands, designated timing restrictions exist for 
pile driving activities to avoid in-water work when salmonids are 
likely to be present. The in-water work window is July 16-February 15, 
although work will not begin prior to September 1. In-water 
construction activities will occur during daylight hours (sunrise to 
sunset).

Soft Start

    The use of a soft-start procedure is believed to provide additional 
protection to marine mammals by warning or providing a chance to leave 
the area prior to the hammer operating at full capacity, and typically 
involves a requirement to initiate sound from vibratory hammers for 
fifteen seconds at reduced energy followed by a thirty-second waiting 
period. This procedure is repeated two additional times.
    We have carefully evaluated the Port's proposed mitigation measures 
and considered their effectiveness in past implementation to determine 
whether they are likely to effect the least practicable impact on the 
affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures included consideration of the 
following factors in relation to one another: (1) The manner in which, 
and the degree to which, the successful implementation of the measure 
is expected to minimize adverse impacts to marine mammals, (2) the 
proven or likely efficacy of the specific measure to minimize adverse 
impacts as planned; and (3) the practicability of the measure for 
applicant implementation.
    Any mitigation measure(s) we prescribe should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the number (total number or number at 
biologically important time or location) of individual marine mammals 
exposed to stimuli expected to result in incidental take (this goal may 
contribute to 1, above, or to reducing takes by behavioral harassment 
only).
    (3) A reduction in the number (total number or number at 
biologically important time or location) of times any individual marine 
mammal would be exposed to stimuli expected to result in incidental 
take (this goal may contribute to 1, above, or to reducing takes by 
behavioral harassment only).

[[Page 59234]]

    (4) A reduction in the intensity of exposure to stimuli expected to 
result in incidental take (this goal may contribute to 1, above, or to 
reducing the severity of behavioral harassment only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying particular attention to the prey base, blockage or 
limitation of passage to or from biologically important areas, 
permanent destruction of habitat, or temporary disturbance of habitat 
during a biologically important time.
    (6) For monitoring directly related to mitigation, an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the Port's proposed measures, including 
information from monitoring of implementation of mitigation measures 
very similar to those described here under previous IHAs for other 
similar projects in Washington inland waters, including work conducted 
at Friday Harbor by the Washington State Department of Transportation, 
we have determined that the proposed mitigation measures provide the 
means of effecting the least practicable impact on marine mammal 
species or stocks and their habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
incidental take authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
     Occurrence of marine mammal species in action area (e.g., 
presence, abundance, distribution, density).
     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 action; or (4) Biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) Population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.
    The Port submitted a marine mammal monitoring plan as part of the 
IHA application for this project, which can be found on the Internet at 
www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. Although this 
plan was initially developed as part of the ESA consultation process 
(with NMFS' West Coast Regional Office) to enable the Port to cease 
activities in the event that ESA-listed species occur in the project 
vicinity, the plan is applicable to all marine mammals that may occur 
in the action area.

Visual Marine Mammal Observations

    The Port will collect sighting data and behavioral responses to 
construction for marine mammal species observed in the region of 
activity during the period of activity. All observers will be trained 
in marine mammal identification and behaviors and are required to have 
no other construction-related tasks while conducting monitoring. The 
Port will monitor the shutdown zone and disturbance zone before, 
during, and after pile driving and removal, with observers located at 
the best practicable vantage points. Based on our requirements, the 
Marine Mammal Monitoring Plan will implement the following procedures 
for pile driving:
     MMOs will be located at the best vantage point(s) in order 
to properly see the entire shutdown zone and as much of the disturbance 
zone as possible. During vibratory driving, a minimum of six MMOs will 
be deployed, including two shore-based (with one of these located 
appropriately to focus on the shutdown zone) and two vessel-based 
monitoring platforms, each with two observers aboard. Please see Figure 
2 of the Port's plan. During vibratory removal, a minimum of three 
observers shall be deployed at the best vantage points to observe the 
shutdown and disturbance zones.
     During all observation periods, observers will use 
binoculars and the naked eye to search continuously for marine mammals.
     If the shutdown zones are obscured by fog or poor lighting 
conditions, pile driving at that location will not be initiated until 
that zone is visible.
     The shutdown and disturbance zones around the pile will be 
monitored for the presence of marine mammals before, during, and after 
any pile driving or removal activity.
    Individuals implementing the monitoring protocol will assess its 
effectiveness using an adaptive approach. Monitoring biologists will 
use their best professional judgment throughout implementation and seek 
improvements to these methods when deemed appropriate. Any 
modifications to protocol will be coordinated between NMFS and the 
Port.
    Although we have determined that incidental take of multiple 
species with recorded occurrence in the action area (e.g., killer 
whales, humpback whales) is unlikely (see ``Estimated Take by 
Incidental Harassment''), the Port's monitoring plan will provide 
additional protections against the unauthorized take of these species. 
While it is difficult to say with certainty that smaller cetaceans or 
pinnipeds would always be detected in an area as large as the typical 
ZOI for vibratory driving (in this case estimated at 6.7 km\2\), we do 
believe that there is a high degree of certainty that large whales 
would be detected. Therefore, in the event that humpback whales, gray 
whales, minke whales, or killer whales occurred in the project area, 
the Port would be able to detect those animals and cease construction 
activity as necessary to avoid unauthorized take. The Port will also 
consult available sighting networks (e.g., Orca Network) on a daily 
basis while pile installation and removal is occurring for situational 
awareness of large whale occurrence in the general vicinity of Friday 
Harbor, such that MMOs know when there is the increased possibility for 
such species to be present.

Data Collection

    We require that observers use approved data forms. Among other 
pieces of information, the Port will record detailed information about 
any implementation of shutdowns, including the distance of animals to 
the pile and description of specific actions that ensued and resulting 
behavior of the animal, if any. In addition, the Port will attempt to 
distinguish between the number of individual animals taken and the 
number of incidents of take. We require that, at a minimum, the

[[Page 59235]]

following information be collected on the sighting forms:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., percent cover, visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Locations of all marine mammal observations; and
     Other human activity in the area.

Reporting

    A draft report must be submitted within ninety calendar days of the 
completion of the in-water work window. The report will include marine 
mammal observations pre-activity, during-activity, and post-activity 
during pile driving days, and will also provide descriptions of any 
problems encountered in deploying sound attenuating devices, any 
behavioral responses to construction activities by marine mammals and a 
complete description of all mitigation shutdowns and the results of 
those actions and an extrapolated total take estimate based on the 
number of marine mammals observed during the course of construction. A 
final report must be submitted within thirty days following resolution 
of comments on the draft report.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of the MMPA defines ``harassment'' as: ``. . . any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild [Level A harassment]; 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering [Level B harassment].''
    All anticipated takes would be by Level B harassment resulting from 
vibratory pile driving/removal and involving temporary changes in 
behavior. Injurious or lethal takes are not expected due to the 
expected source levels and sound source characteristics associated with 
the activity, and the planned mitigation and monitoring measures are 
expected to further minimize the possibility of such take.
    If a marine mammal responds to a stimulus by changing its behavior 
(e.g., through relatively minor changes in locomotion direction/speed 
or vocalization behavior), the response may or may not constitute 
taking at the individual level, and is unlikely to affect the stock or 
the species as a whole. However, if a sound source displaces marine 
mammals from an important feeding or breeding area for a prolonged 
period, impacts on animals or on the stock or species could potentially 
be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Given 
the many uncertainties in predicting the quantity and types of impacts 
of sound on marine mammals, it is common practice to estimate how many 
animals are likely to be present within a particular distance of a 
given activity, or exposed to a particular level of sound.
    This practice potentially overestimates the numbers of marine 
mammals taken because it is often difficult to distinguish between the 
individuals harassed and incidences of harassment. In particular, for 
stationary activities, it is more likely that some smaller number of 
individuals may accrue a number of incidences of harassment per 
individual than for each incidence to accrue to a new individual, 
especially if those individuals display some degree of residency or 
site fidelity and the impetus to use the site (e.g., because of 
foraging opportunities) is stronger than the deterrence presented by 
the harassing activity.
    The project area is not believed to be particularly important 
habitat for marine mammals, nor is it considered an area frequented by 
marine mammals. Therefore, behavioral disturbances that could result 
from anthropogenic sound associated with these activities are expected 
to affect only a relatively small number of individual marine mammals, 
although those effects could be recurring over the life of the project 
if the same individuals remain in the project vicinity. Specifically, 
at Friday Harbor marina there is a known individual harbor seal that 
the Port believes is unlikely to respond to harassing stimuli in 
aversive manner, meaning the seal is believed likely to simply remain 
in the immediate vicinity of the marina and be exposed to sound (either 
airborne or underwater) at or above levels that we consider to incur 
incidental take. This is accounted for in estimating incidental take 
for harbor seals below.
    The Port has requested authorization for the incidental taking of 
small numbers of Steller sea lions, California sea lions, harbor seals, 
Dall's porpoises, and harbor porpoises near Friday Harbor that may 
result from pile driving during construction activities associated with 
the marina reconstruction project described previously in this 
document. In order to estimate the potential incidents of take that may 
occur incidental to the specified activity, we first estimated the 
extent of the sound field that may be produced by the activity and then 
considered that in combination with information about marine mammal 
density or abundance in the project area. We provided detailed 
information on applicable sound thresholds for determining effects to 
marine mammals as well as describing the information used in estimating 
the sound fields, the available marine mammal density or abundance 
information, and the method of estimating potential incidences of take, 
in our Federal Register notice of proposed authorization (79 FR 43402; 
July 25, 2014). With the exception of our revision to the harbor seal 
take estimate (described below; see also ``Comments and Responses'' 
above), that information is unchanged, and our take estimates were 
calculated in the same manner and on the basis of the same information 
as what was described in the Federal Register notice. Modeled distances 
to relevant thresholds are shown in Table 2 and total estimated 
incidents of take are shown in Table 3. Please see our Federal Register 
notice of proposed authorization (79 FR 43402; July 25, 2014) for full 
details of the process and information used in estimating potential 
incidents of take.

  Table 2--Calculated Distance(s) to and Area Encompassed by Underwater
         Marine Mammal Sound Thresholds During Pile Installation
------------------------------------------------------------------------
             Threshold                  Distance \1\           Area
------------------------------------------------------------------------
Vibratory driving, disturbance      6.3 km.............  6.7 km\2\
 (120 dB).
Vibratory removal, disturbance      1.6 km.............  1.8 km\2\
 (120 dB).
------------------------------------------------------------------------
\1\ Radial distances presented for reference only. Maximum line of sight
  distance from Friday Harbor before encountering land is approximately
  4 km. Please refer to Figure 1-3 in the Port's application.

    All calculated distances to and the total area encompassed by the 
120-dB marine mammal sound threshold for the two activities are 
provided in Table 2.

[[Page 59236]]

The Port used source values of 177 dB rms for vibratory driving and 168 
dB rms for vibratory removal. Because these values are below the 180/
190 dB rms injury criteria, there are no zones within which injury 
would be expected to occur as a result of exposure to underwater sound. 
Please see also Figure 1-3 of the Port's application for a spatial 
representation of these zones in relation to local topography, which 
constrains the actual sound field from reaching the estimated radial 
distance to threshold for vibratory driving, and in certain directions 
for vibratory removal. The maximum line of sight distance that may be 
reached from the Friday Harbor marina before encountering land is 
approximately 4 km. Distances shown in Table 2 are estimated for free-
field conditions, but areas are calculated per the actual conditions of 
the action area.
    Harbor Seal--The Port's methodology for harbor seals--as described 
in our Federal Register notice of proposed authorization (79 FR 43402; 
July 25, 2014)--follows that described in Jeffries et al. (2003). The 
authors conducted aerial surveys of harbor seals in 1999 for the 
Washington Department of Fish and Wildlife, dividing the survey areas 
into seven strata (including five in inland waters and two in coastal 
waters). To account for animals in the water and not observed during 
survey counts, a correction factor of 1.53 was applied (Huber et al., 
2001) to derive a total population for each stratum (including the San 
Juan Islands). The correction factor (1.53) was based on the proportion 
of time seals spend on land versus in the water over the course of a 
day, and was derived by dividing one by the percentage of time harbor 
seals spent on land. These data came from tags (VHF transmitters) 
applied to harbor seals at six areas (Grays Harbor, Tillamook Bay, 
Umpqua River, Gertrude Island, Protection/Smith Islands, and Boundary 
Bay, BC) within two different harbor seal stocks (the coastal stock and 
the Washington inland waters stock) over four survey years. Although 
the sampling areas included both coastal and inland waters, with pooled 
correction factors of 1.50 and 1.57, respectively, Huber et al. (2001) 
found no significant difference in the proportion of seals ashore among 
the six sites and no interannual variation at one site studied across 
years. In our Federal Register notice of proposed authorization (79 FR 
43402; July 25, 2014), we retained the total pooled correction factor 
of 1.53 in determining a non-seasonal density estimate for the San Juan 
Islands stratum.
    However, the Marine Mammal Commission recommended that we require 
the Port to re-estimate the number of harbor seal takes using an area-
specific haul-out correction factor rather than a pooled regional 
correction factor (Huber et al., 2001). As noted above, Huber et al. 
(2001) provide correction factors from each of six locations, including 
three each from coastal and inland sites, which the authors combined 
into a single regional correction factor of 1.53 (1.50 and 1.57 for 
coastal and inland sites, respectively). However, the correction factor 
for the Protection/Smith Islands site--located within the San Juan 
Islands--was 1.85. The Commission holds that, if site- or area-specific 
correction factors are available, those factors should be used rather 
than pooled correction factors. Following discussion with the 
Commission, we determined that in this particular instance it would be 
appropriate to accept the recommendation and have revised the density 
estimate used in the take estimation process accordingly. The revised 
density estimate is shown in Table 3 below.
    As described in our Federal Register notice of proposed 
authorization (79 FR 43402; July 25, 2014), we evaluate the potential 
for incidental take to occur by first multiplying the most appropriate 
species- and season-specific density estimate by the relevant area of 
effect (ZOI). Those areas are estimated as 1.8 and 6.7 km\2\ for 
vibratory pile removal and vibratory pile installation, respectively. 
The product of that calculation is then rounded to the nearest whole 
number to estimate an instantaneous abundance within the relevant ZOI, 
which is then multiplied by the number of days of the relevant activity 
(three and 26 for pile removal and installation, respectively) to 
arrive at an activity-specific estimate of potential incidents of 
incidental take. For all species, we have used the highest available 
density estimate (for either fall or winter when seasonal estimates are 
available) to evaluate the potential for incidental take. Table 3 
summarizes the density estimates described above, the interim products 
of the calculation, and sums to the total take authorization for each 
species. We have provided information for all species that may occur in 
the San Juan Islands, but take authorization is authorized for only a 
subset of these (i.e., California and Steller sea lions, harbor seal, 
and harbor and Dall's porpoises). For the remaining species, the take 
estimation process indicates that incidental take is unlikely. While we 
recognize that these species may nevertheless occur in the project 
area, we believe that the Port's monitoring plan further reduces the 
potential for any of these species (especially the large whales, which 
are relatively easy to detect and whose occurrence in the region may be 
noted on a daily basis through consultation with sighting networks such 
as Orca Network). Finally, we note that there is a single, known 
individual harbor seal that is not expected to react to stimuli with 
avoidance behavior. Therefore, we expect that there is the potential 
for this individual animal to remain present through each day of 
construction and have added 29 takes (one for each anticipated day of 
construction) to the total estimate for harbor seals. For reasons 
described previously in this document, no Level A takes would be 
expected (nor indicated through the take estimation process) and no 
takes occurring solely via exposure to airborne sound (with the 
potential exception of the known individual described here and 
previously). No take is authorized for those species with a zero value 
in the right-hand column of Table 3, and no Level A takes or takes 
solely via airborne sound are authorized.

                                                  Table 3--Calculations for Incidental Take Estimation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Estimated        n * ZOI        Estimated    Total proposed
                                                           n  (animals/       n * ZOI     Level B takes;    (vibratory    Level B takes;    authorized
                         Species                             km\2\)\1\      (vibratory       vibratory         pile          vibratory     takes  (% of
                                                                           pile removal)      removal      installation)   installation    total stock)
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion.....................................           0.676             1.2               3             4.5             130      133 (0.04)
Steller sea lion........................................           0.935             1.7               6             6.2             156       162 (0.3)
Harbor seal.............................................          3.8448             6.9              21            25.8             676   \2\ 726 (5.0)
Harbor porpoise.........................................         2.11226             3.9              12            14.1             364       376 (3.5)
Dall's porpoise.........................................            0.39             0.7               3             2.6              78        81 (0.2)

[[Page 59237]]

 
Killer whale (transient)................................  0.00306 (fall)            0.01               0            0.02               0               0
Killer whale (resident).................................  0.02024 (fall)            0.04               0             0.1               0               0
Minke whale.............................................            0.02            0.04               0             0.1               0               0
Humpback whale..........................................  0.00014 (fall)          0.0003               0           0.001               0               0
Gray whale..............................................          0.0051            0.01               0            0.03               0               0
                                                                (winter)
Pacific white-sided dolphin.............................  0.00248 (fall)           0.005               0            0.02               0               0
Northern elephant seal..................................          0.0063            0.01               0            0.04               0               0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Best available species- and season-specific density estimate, with season noted in parentheses where applicable.
\2\ This value includes 29 additional incidents of take to account for the known individual seal expected to remain present at Friday Harbor during
  construction. See explanation above.

Analyses and Determinations

Negligible Impact Analysis

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 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.'' 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 
Level B harassment 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 behavioral 
harassment, we consider other factors, such as the likely nature of any 
responses (e.g., intensity, duration), the context of any responses 
(e.g., critical reproductive time or location, migration), as well as 
the number and nature of estimated Level A harassment takes, the number 
of estimated mortalities, and effects on habitat.
    Pile driving activities associated with the marina reconstruction 
project, as outlined previously, have the potential to disturb or 
displace marine mammals. Specifically, the specified activities may 
result in take, in the form of Level B harassment (behavioral 
disturbance) only, from underwater sounds generated from pile driving. 
Potential takes could occur if individuals of these species are present 
in the ensonified zone when pile driving is happening.
    No injury, serious injury, or mortality is anticipated given the 
methods of construction. Measures designed to minimize the possibility 
of injury to marine mammals (e.g., exclusion zones) further reduce any 
possibility of injury. Specifically, vibratory hammers are the sole 
method of installation, and this activity does not have significant 
potential to cause injury to marine mammals due to the relatively low 
source levels produced (expected to be less than 180 dB rms) and the 
lack of potentially injurious source characteristics. Impact pile 
driving produces short, sharp pulses with higher peak levels and much 
sharper rise time to reach those peaks than does vibratory driving or 
removal. The likelihood that marine mammal detection ability by trained 
observers is high under the general environmental conditions expected 
for Friday Harbor, in concert with the very small shutdown zones--which 
are defined as a precautionary measure only, as expected source levels 
are below the relevant injury criteria--further enables the 
implementation of shutdowns to avoid any potential for injury.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from similar 
past projects, will likely be limited to reactions such as increased 
swimming speeds, increased surfacing time, or decreased foraging (if 
such activity were occurring). Most likely, individuals will simply 
move away from the sound source and be temporarily displaced from the 
areas of pile driving, although even this reaction has been observed 
primarily only in association with impact pile driving. In response to 
vibratory driving, harbor seals (which may be somewhat habituated to 
human activity along the Friday Harbor waterfront) have been observed 
to orient towards and sometimes move towards the sound. Repeated 
exposures of individuals to levels of sound that may cause Level B 
harassment are unlikely to result in hearing impairment or to 
significantly disrupt foraging behavior. Thus, even repeated Level B 
harassment of some small subset of an overall stock is unlikely to 
result in any significant realized decrease in fitness to those 
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 impact through use of mitigation measures described 
herein and, if sound produced by project activities is sufficiently 
disturbing, animals are likely to simply avoid the project area while 
the activity is occurring.
    For pinnipeds, no rookeries are present in the project area, and 
there are few haul-outs other than rocks used by harbor seals at the 
distant edge of the Level B ZOI for pile installation and opportunistic 
haul-outs provided by man-made objects. The project area is not known 
to provide foraging habitat of any special importance. The pile driving 
activities analyzed here are similar to other nearby construction 
activities In Washington inland waters, including recent projects 
conducted by WSDOT at the same location (Friday Harbor and Orcas Island 
Ferry Terminals), which have taken place with no reported injuries or 
mortality to marine mammals, and no known long-term adverse 
consequences from behavioral harassment.
    In summary, this negligible impact analysis is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality may reasonably be considered discountable; (2) the 
anticipated incidences of Level B harassment consist of, at worst, 
temporary modifications in behavior; (3) the absence of any major 
rookeries and only a few isolated and opportunistic haul-out areas near 
or adjacent to the project site; (4) the absence of any other known 
areas or features of special significance for foraging or reproduction 
within the project area; and (6) the likely efficacy of the planned 
mitigation measures in reducing the effects of the specified activity 
to the level of least practicable impact. In addition, none of

[[Page 59238]]

the stocks for which take is authorized are listed under the ESA or 
designated as depleted under the MMPA. All of the stocks for which take 
is authorized are thought to be increasing or to be within OSP size. In 
combination, we believe that these factors, as well as the available 
body of evidence from other similar activities, including those 
conducted at the same time of year and in the same location, 
demonstrate that the potential effects of the specified activity will 
have only short-term effects on individuals. The specified activity is 
not expected to impact rates of recruitment or survival and will 
therefore not result in population-level impacts. 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 planned monitoring and mitigation measures, we 
find that the total marine mammal take from the Port's marina 
reconstruction activities will have a negligible impact on the affected 
marine mammal species or stocks.

Small Numbers Analysis

    The numbers of animals authorized to be taken for all species would 
be considered small relative to the relevant stocks or populations 
(ranging from less than one percent for sea lions and Dall's porpoise 
to five percent for harbor seals) even if each estimated taking 
occurred to a new individual--an extremely unlikely scenario. For 
pinnipeds occurring in the vicinity of the Friday Harbor waterfront, 
there will almost certainly be some overlap in individuals present day-
to-day, and these takes are likely to occur only within some small 
portion of the overall regional stock, such as the number of harbor 
seals that regularly use nearby haul-out rocks. For migratory species, 
the segment of the overall stock to which take would accrue is likely 
much smaller. For example, of the estimated 296,500 California sea 
lions, only certain adult and subadult males--believed to number 
approximately 3,000-5,000 by Jeffries et al. (2000)--travel north 
during the non-breeding season. That number has almost certainly 
increased with the population of California sea lions--the 2000 SAR for 
California sea lions reported an estimated population size of 204,000-
214,000 animals--but likely remains a relatively small portion of the 
overall population.
    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 mitigation and monitoring 
measures, we find that small numbers of marine mammals will be taken 
relative to the populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, we have determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    No marine mammal species listed under the ESA are expected to be 
affected by these activities. Therefore, we have determined that a 
section 7 consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, we prepared an Environmental 
Assessment (EA) to consider the direct, indirect and cumulative effects 
to the human environment resulting from issuance of an IHA to the Port 
for the specified activities and found that it would not result in any 
significant impacts to the human environment. We signed a Finding of No 
Significant Impact (FONSI) on August 29, 2014.

Authorization

    As a result of these determinations, we have issued an IHA to the 
Port for conducting the described activities at Friday Harbor, 
Washington, from September 3, 2014 through February 15, 2015, provided 
the previously described mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: September 24, 2014.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2014-23338 Filed 9-30-14; 8:45 am]
BILLING CODE 3510-22-P