[Federal Register Volume 82, Number 129 (Friday, July 7, 2017)]
[Notices]
[Pages 31579-31592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14261]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XF250


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Seattle Multimodal Construction 
Project in Washington State

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

ACTION: Notice; issuance of an incidental harassment authorization.

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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 
Washington State Department of Transportation (WSDOT) to take small 
numbers of marine mammals, by harassment, incidental to Seattle 
Multimodal Construction Project in Washington State.

DATES: This authorization is effective from August 1, 2017, through 
July 31, 2018.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as the issued IHA, may be obtained 
online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In 
case of problems accessing these documents, please call the contact 
listed above.

SUPPLEMENTARY INFORMATION: 

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 by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified area, the incidental, but not intentional, 
taking of small numbers of marine mammals, provided that certain 
findings are made and the necessary prescriptions are established.
    The incidental taking of small numbers of marine mammals shall be 
allowed if NMFS (through authority delegated by the Secretary) finds 
that the total taking by the specified activity during the specified 
time period will (i) have a negligible impact on the species or 
stock(s) and (ii) not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant). Further, the permissible methods of taking, as well as the 
other means of effecting the least practicable adverse impact on the 
species or stock and its habitat (i.e., mitigation) must be prescribed. 
Last, requirements pertaining to the monitoring and reporting of such 
taking must be set forth.
    Where there is the potential for serious injury or death, the 
allowance of incidental taking requires promulgation of regulations 
under MMPA section 101(a)(5)(A). Subsequently, a Letter (or Letters) of 
Authorization may be issued as governed by the prescriptions 
established in such regulations, provided that the level of taking will 
be consistent with the findings made for the total taking allowable 
under the specific regulations. Under MMPA section 101(a)(5)(D), NMFS 
may authorize incidental taking by harassment only (i.e., no serious 
injury

[[Page 31580]]

or mortality), for periods of not more than one year, pursuant to 
requirements and conditions contained within an IHA. The promulgation 
of regulations or issuance of IHAs (with their associated prescribed 
mitigation, monitoring, and reporting) requires notice and opportunity 
for public comment.
    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.
    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).

National Environmental Policy Act (NEPA)

    Issuance of an MMPA 101(a)(5) authorization requires compliance 
with the National Environmental Policy Act.
    NMFS determined the issuance of the IHA is consistent with 
categories of activities identified in CE B4 (issuance of incidental 
harassment authorizations under section 101(a)(5)(A) and (D) of the 
MMPA for which no serious injury or mortality is anticipated) of the 
Companion Manual for NAO 216-6A and we have not identified any 
extraordinary circumstances listed in Chapter 4 of the Companion Manual 
for NAO 216-6A that would preclude this categorical exclusion.

Summary of Request

    On July 28, 2016, WSDOT submitted a request to NMFS requesting an 
IHA for the harassment of small numbers of 11 marine mammal species 
incidental to construction associated with the Seattle Multimodal 
Project at Colman Dock, Seattle, Washington, between August 1, 2017 and 
July 31, 2018. NMFS initially determined the IHA application was 
complete on September 1, 2016. However, WSDOT notified NMFS in November 
2016 that the scope of its activities had changed. WSDOT stated that 
instead of using vibratory hammers for the majority of in-water pile 
driving and using impact hammer for proofing, it would be required to 
use impact hammers to drive a large number of piles completely due to 
sediment conditions at Colman Dock. On March 2, 2017, WSDOT submitted a 
revised IHA application with updated project description. NMFS 
determined that the revised IHA application was complete on March 3, 
2017.
    In the IHA issued to WSDOT, NMFS authorized the Level A and Level B 
harassment of the following seven marine mammal species/stocks: Harbor 
seal (Phoca vitulina), California sea lion (Zalophus californianus), 
Steller sea lion (Eumetopias jubatus), killer whale (Orcinus orca), 
gray whale (Eschrichtius robustus), harbor porpoise (Phocoena 
phocoena), and Dall's porpoise (P. dalli).

Description of Specified Activities

Overview

    WSDOT is proposing to preserve the Seattle Ferry Terminal at Colman 
Dock. The project will reconfigure the dock while maintaining 
approximately the same vehicle holding capacity as current conditions. 
The reconfiguration would increase total permanent overwater coverage 
(OWC) by about 5,400 square feet (ft\2\) (about 1.7 percent more than 
existing overwater coverage at the site), due to the new walkway from 
the King County Passenger Only Ferry (POF) facility to Alaskan Way and 
new stairways and elevators from the POF to the upper level of the 
terminal. The additional 5,400 ft\2\ will be mitigated by removing a 
portion of Pier 48, a condemned timber structure.
    The project will remove the northern timber trestle and replace a 
portion of it with a new concrete trestle. The area from Marion Street 
to the north edge of the property will not be rebuilt and will become, 
after demolition, a new area of open water. A section of fill contained 
behind a bulkhead underneath the northeast section of the dock will 
also be removed.
    WSDOT will construct a new steel and concrete trestle from Columbia 
Street northward to Marion Street. Construction of the reconfigured 
dock will narrow (reduce) the OWC along the shoreline (at the landward 
edge) by 180 linear feet at the north end of the site, while 30 linear 
feet of new trestle would be constructed along the shoreline at the 
south end of the site. The net reduction of OWC in the nearshore zone 
is 150 linear feet.
    The purpose of the Seattle Multimodal Project at Colman Dock is to 
preserve the transportation function of an aging, deteriorating and 
seismically deficient facility to continue providing safe and reliable 
service. The project will also address existing safety concerns related 
to conflicts between vehicles and pedestrian traffic and operational 
inefficiencies.
    Details of the WSDOT's construction activities are provided in the 
IHA application and in the Federal Register notice for the proposed IHA 
(82 FR 15497; March 29, 2017).

Dates and Duration

    Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water 
work timing restrictions to protect Endangered Species Act (ESA) listed 
salmonids, planned WSDOT in-water construction at this location is 
limited each year to July 16 through February 15. For this project, in-
water construction is planned to take place between August 1, 2017 and 
February 15, 2018.
    The total worst-case time for pile installation and removal is 
expected to be 83 working days (Table 1).
     Vibratory driving of each of the 101 24-inch (in) steel 
pile will take approximately 20 minutes, with a maximum of 16 piles 
installed per day over 7 days.
     Vibratory removal of 103 temporary 24-in diameter steel 
piles will take approximately 20 minutes per pile, with maximum 16 
piles removed per day over 8 days.
     Impact driving (3,000 strikes per pile) of 14 30-in and 
201 36-in diameter steel piles will take approximately 45 minutes per 
pile, with maximum 8 piles per day for a total of 28 days.
     Vibratory driving of 17 30- and 205 36-in diameter steel 
piles will take 45 minutes per pile, with maximum 8 piles per day over 
a total of 29 days.
     Vibratory removal of 4-in timber piles will take 
approximately 15 minutes per pile, with approximately 20 piles removed 
per day for 11 days.

                               Table 1--Summary of In-Water Pile Driving Durations
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                                                                                     Time to
                                                                                 vibratory drive
                                                    Pile size                       per pile/        Duration
            Method                 Pile type         (inch)        Pile number      strikes to        (days)
                                                                                   impact drive
                                                                                     per pile
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Vibratory removal............  Timber..........              14             215  900 seconds....              11
Vibratory removal............  Steel...........              24             103  1,200 seconds..               8

[[Page 31581]]

 
Vibratory driving............  Steel...........              24             101  1,200 seconds..               7
Vibratory driving............  Steel...........              30              17  1,200 seconds..               3
Vibratory driving............  Steel...........              36             205  1,200 seconds..              26
Impact driving...............  Steel...........              30              14  3,000 strikes..               2
Impact driving...............  Steel...........              36             201  3,000 strikes..              26
                              ----------------------------------------------------------------------------------
    Total....................  ................  ..............             856  ...............              83
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Specified Geographic Region

    The proposed activities will occur at the Seattle Ferry Terminal at 
Colman Dock, located in the City of Seattle, Washington (see Figure 1-2 
of the IHA application).

Detailed Description of In-Water Pile Driving Associated With Seattle 
Multimodal Project

    The proposed project has two elements involving noise production 
that may affect marine mammals: Vibratory hammer driving and removal, 
and impact hammer driving.
    Details of pile driving activities are provided below:
     The 14-in timber piles will be removed with a vibratory 
hammer (Table 1).
     The 24-in temporary piles will be installed and removed 
with a vibratory hammer (no proofing) (Table 1).
     Some of the permanent 30- and 36-in steel piles would be 
installed with a vibratory hammer, and some would be installed with 
impact hammer (Table 1).
    Details of the in-water impact pile driving and vibratory pile 
driving and removal activities are provided in the Federal Register 
notice for the proposed IHA (82 FR 15497; March 29, 2017). No changes 
are made since the proposed IHA was published.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the 
Federal Register on March 29, 2017 (82 FR 15497). During the 30-day 
public comment period, NMFS received a comment letter from the Marine 
Mammal Commission (Commission). No other comments were received. 
Specific comments and responses are provided below.
    Comment 1: The Commission noted that several typographic and 
analytical errors in the Federal Register notice for the proposed IHA. 
These errors include: (1) Level B harassment for Steller sea lion and 
Dall's porpoise should be 116 and 143, instead of 114 and 137, 
respectively; (2) daily maximum number of observed harbor seal and 
California sea lion in the project vicinity should be 13 and 47, 
respectively. This would result the estimated Level A and Level B takes 
of harbor seals to be 364 and 715, respectively; the estimated Level B 
take of California sea lion to be 3,901; and (3) The most recent harbor 
porpoise density of 0.69 animal/square kilometer (km\2\) from Jefferson 
et al. (2016) should be used to calculate harbor porpoise takes.
    Response: NMFS agrees with the Commission's assessment and made 
corrections to these errors. Specifically, (1) The estimated Level B 
takes of Steller sea lion and Dall's porpoise are corrected to 116 and 
143, respectively; (2) Used corrected daily maximum number of observed 
harbor seal and California sea lions to calculate estimated takes, 
which resulted Level A and Level B takes of harbor seals to be 364 and 
715 animals, respectively; and Level B take of California sea lion to 
be 3,901 animals; and (3) The most recent harbor porpoise density of 
0.69 animal/km\2\ from Jefferson et al. (2016) was used to correct 
harbor porpoise takes, which result estimated 233 Level A and 2,056 
Level B takes. All these corrections are included in this document in 
the Estimated Takes section. The increased takes do not affect our 
initial analysis of negligible impact determination and small number 
conclusion as discussed later in this document.
    Comment 2: The Commission states that it is concerned regarding 
NMFS appropriateness of the manner in which Level A harassment zones 
are estimated. The Commission points out that for impact driving of 30- 
and 36-in piles using three hammers concurrently, the Level A 
harassment zones for both low- and high-frequency cetaceans were 
estimated to be much greater (1.85 and 2.84 km, respectively) than the 
Level B harassment zone (1.20 km). The Commission recommends that NMFS 
consult with both internal and external scientists and acousticians to 
determine the relevant accumulation time that could result Level A 
harassment based on associated permanent threshold shift (PTS) from 
cumulative sound exposure levels (SELcum).
    Response: NMFS understands the Commission's concern and is 
continuing working to improve Level A harassment zone estimation based 
on realistic noise propagation models and energy accumulation scheme. 
At current, Level A harassment zones are based on exposure of 
SELcum over a period of one working day's pile driving 
duration or instantaneous peak sound pressure level (SPL), while Level 
B harassment zones are based on instantaneous root-mean-squared SPL 
that contains 90 percent of acoustic energy. The difference in the 
metrics between SEL and SPL in assessing Level A and Level B 
harassments is the notion that prolonged exposure of intense noise 
could lead to PTS if the animal chooses to stay within the injury zone. 
The process of impact assessments will continue to evolve as more 
scientific data become available.

Description of Marine Mammals in the Area of Specified Activities

    The marine mammal species under NMFS jurisdiction that have the 
potential to occur in the proposed construction area include Pacific 
harbor seal (Phoca vitulina), California sea lion (Zalophus 
californianus), northern elephant seal (Mirounga angustirostris), 
Steller sea lion (Eumetopias jubatus), killer whale (Orcinus orca), 
long-beaked common dolphin (Delphis capensis), gray whale (Eschrichtius 
robustus), humpback whale (Megaptera novaeangliae), minke whale 
(Balaenoptera acutorostrata), harbor porpoise (Phocoena phocoena), and 
Dall's porpoise (P. dalli). A list of marine mammals that have the 
potential to occur in the vicinity of the action and their legal status 
under the MMPA and ESA are provided in Table 2. Among these species, 
northern elephant seal, minke whale, and long-beaked common dolphin are 
extralimital in the proposed project area. NMFS does not consider take 
is likely to occur for these species. Therefore, these species are not 
discussed further in this document.

[[Page 31582]]



                    Table 2--Marine Mammal Species Potentially Present in Region of Activity
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             Species                    ESA status          MMPA status           Occurrence         Abundance
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Harbor Seal......................  Not listed.........  Non-depleted.......  Frequent...........             Unk
California Sea Lion..............  Not listed.........  Non-depleted.......  Frequent...........         296,750
Northern Elephant Seal...........  Not listed.........  Non-depleted.......  Extralimital.......         179,000
Steller Sea Lion (eastern DPS)...  Not listed.........  Non-depleted.......  Rare...............          71,256
Harbor Porpoise..................  Not listed.........  Non-depleted.......  Frequent...........          11,233
Dall's Porpoise..................  Not listed.........  Non-depleted.......  Occasional.........          25,750
Killer Whale (Southern Resident).  Endangered.........  Depleted...........  Occasional.........              78
Killer Whale (West Coast           Not listed.........  Non-depleted.......  Occasional.........             243
 transient).
Long-beaked Common Dolphin.......  Not listed.........  Non-depleted.......  Extralimital.......         101,305
Gray Whale.......................  Not listed.........  Non-depleted.......  Occasional.........          20,990
Humpback Whale...................  Endangered.........  Depleted...........  Rare...............           1,918
Minke Whale......................  Not listed.........  Non-depleted.......  Extralimital.......             636
----------------------------------------------------------------------------------------------------------------

    General information on the marine mammal species found in 
Washington coastal waters can be found in Caretta et al. (2016), which 
is available online at: http://www.nmfs.noaa.gov/pr/sars/pdf/pacific2015_final.pdf. Refer to that document for information on these 
species. Specific information concerning these species in the vicinity 
of the proposed action area is provided in detail in the WSDOT's IHA 
application and in the Federal Register notice for the proposed IHA (82 
FR 15497; March 29, 2017).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The ``Estimated Take'' section later in this document 
will include a quantitative analysis of the number of individuals that 
are expected to be taken by this activity. The ``Negligible Impact 
Analyses and Determination'' section will consider the content of this 
section, the ``Estimated Take by Incidental Harassment'' section, and 
the ``Mitigation'' section, to draw conclusions regarding the likely 
impacts of these activities on the reproductive success or survivorship 
of individuals and how those impacts on individuals are likely to 
impact marine mammal species or stocks.
    When considering the influence of various kinds of sound on the 
marine environment, it is necessary to understand that different kinds 
of marine life are sensitive to different frequencies of sound. Based 
on available behavioral data, audiograms derived using auditory evoked 
potentials, anatomical modeling, and other data, NMFS (2016) designated 
five ``marine mammal hearing groups'' for marine mammals and estimate 
the lower and upper frequencies of hearing of the groups. The marine 
mammal groups and the associated frequencies are indicated below 
(though animals are less sensitive to sounds at the outer edge of their 
functional range and most sensitive to sounds of frequencies within a 
smaller range somewhere in the middle of their hearing range):
     Low frequency cetaceans (13 species of mysticetes): 
Functional hearing is estimated to occur between approximately 7 hertz 
(Hz) and 35 kilohertz (kHz);
     Mid-frequency cetaceans (32 species of dolphins, seven 
species of larger toothed whales, and 19 species of beaked and 
bottlenose whales): Functional hearing is estimated to occur between 
approximately 150 Hz and 160 kHz;
     High frequency cetaceans (eight species of true porpoises, 
seven species of river dolphins, Kogia, the franciscana, and four 
species of cephalorhynchids): Functional hearing is estimated to occur 
between approximately 275 Hz and 160 kHz;
     Phocid pinnipeds in Water: Functional hearing is estimated 
to occur between approximately 50 Hz and 86 kHz; and
     Otariid pinnipeds in Water: Functional hearing is 
estimated to occur between approximately 60 Hz and 39 kHz.
    As mentioned previously in this document, eight marine mammal 
species (five cetacean and three pinniped species) are likely to occur 
in the vicinity of the Seattle pile driving/removal area. Of the five 
cetacean species, two belong to the low-frequency cetacean group (gray 
and humpback whales), one is a mid-frequency cetacean (killer whale), 
and two high-frequency cetacean (harbor and Dall's porpoises). One 
species of pinniped is phocid (harbor seal), and two species of 
pinniped are otariid (California and Steller sea lions). A species' 
functional hearing group is a consideration when we analyze the effects 
of exposure to sound on marine mammals.
    The WSDOT's Seattle Colman ferry terminal construction work using 
in-water pile driving and pile removal could adversely affect marine 
mammal species and stocks by exposing them to elevated noise levels in 
the vicinity of the activity area.
    Exposure to high intensity sound for a sufficient duration may 
result in auditory effects such as a noise-induced threshold shift--an 
increase in the auditory threshold after exposure to noise (Finneran et 
al., 2005). Factors that influence the amount of threshold shift 
include the amplitude, duration, frequency content, temporal pattern, 
and energy distribution of noise exposure. The magnitude of hearing 
threshold shift normally decreases over time following cessation of the 
noise exposure. The amount of threshold shift just after exposure is 
the initial threshold shift. If the threshold shift eventually returns 
to zero (i.e., the threshold returns to the pre-exposure value), it is 
a temporary threshold shift (TTS) (Southall et al., 2007).
    Threshold Shift (noise-induced loss of hearing)--When animals 
exhibit reduced hearing sensitivity (i.e., sounds must be louder for an 
animal to detect them) following exposure to an intense sound or sound 
for long duration, it is referred to as a noise-induced threshold shift 
(TS). An animal can experience TTS or permanent threshold shift (PTS). 
TTS can last from minutes or hours to days (i.e., there is complete 
recovery), can occur in specific frequency ranges (i.e., an animal 
might only have a temporary loss of hearing sensitivity between the 
frequencies of 1 and 10 kHz), and can be of varying amounts (for 
example, an animal's hearing sensitivity might be reduced initially by 
only 6 decibel (dB) or reduced by 30 dB). PTS is permanent, but some 
recovery is possible. PTS can also occur in a specific frequency range 
and amount as mentioned above for TTS.
    For cetaceans, published data are limited to the captive bottlenose

[[Page 31583]]

dolphin, beluga, harbor porpoise, and Yangtze finless porpoise 
(Finneran et al., 2000, 2002, 2003, 2005, 2007, 2010a, 2010b; Finneran 
and Schlundt, 2010; Lucke et al., 2009; Mooney et al., 2009a, 2009b; 
Popov et al., 2011a, 2011b; Kastelein et al., 2012a; Schlundt et al., 
2000; Nachtigall et al., 2003, 2004). For pinnipeds in water, data are 
limited to measurements of TTS in harbor seals, an elephant seal, and 
California sea lions (Kastak et al., 1999, 2005; Kastelein et al., 
2012b).
    Lucke et al. (2009) found a TS of a harbor porpoise after exposing 
it to airgun noise with a received sound pressure level (SPL) at 200.2 
dB (peak-to-peak) re: 1 micropascal ([mu]Pa), which corresponds to a 
sound exposure level of 164.5 dB re: 1 [mu]Pa\2\ s after integrating 
exposure. NMFS currently uses the root-mean-square (rms) of received 
SPL at 180 dB and 190 dB re: 1 [mu]Pa as the threshold above which PTS 
could occur for cetaceans and pinnipeds, respectively. Because the 
airgun noise is a broadband impulse, one cannot directly determine the 
equivalent of rms SPL from the reported peak-to-peak SPLs. However, 
applying a conservative conversion factor of 16 dB for broadband 
signals from seismic surveys (McCauley, et al., 2000) to correct for 
the difference between peak-to-peak levels reported in Lucke et al. 
(2009) and rms SPLs, the rms SPL for TTS would be approximately 184 dB 
re: 1 [mu]Pa, and the received levels associated with PTS (Level A 
harassment) would be higher. However, NMFS recognizes that TTS of 
harbor porpoises is lower than other cetacean species empirically 
tested (Finneran & Schlundt 2010; Finneran et al., 2002; Kastelein and 
Jennings 2012).
    Marine mammal hearing plays a critical role in communication with 
conspecifics, and interpretation of environmental cues for purposes 
such as predator avoidance and prey capture. Depending on the degree 
(elevation of threshold in dB), duration (i.e., recovery time), and 
frequency range of TTS, and the context in which it is experienced, TTS 
can have effects on marine mammals ranging from discountable to serious 
(similar to those discussed in auditory masking, below). For example, a 
marine mammal may be able to readily compensate for a brief, relatively 
small amount of TTS in a non-critical frequency range that occurs 
during a time where ambient noise is lower and there are not as many 
competing sounds present. Alternatively, a larger amount and longer 
duration of TTS sustained during time when communication is critical 
for successful mother/calf interactions could have more serious 
impacts. Also, depending on the degree and frequency range, the effects 
of PTS on an animal could range in severity, although it is considered 
generally more serious because it is a permanent condition. Of note, 
reduced hearing sensitivity as a simple function of aging has been 
observed in marine mammals, as well as humans and other taxa (Southall 
et al., 2007), so one can infer that strategies exist for coping with 
this condition to some degree, though likely not without cost.
    In addition, chronic exposure to excessive, though not high-
intensity, noise could cause masking at particular frequencies for 
marine mammals that utilize sound for vital biological functions (Clark 
et al., 2009). Acoustic masking is when other noises such as from human 
sources interfere with animal detection of acoustic signals such as 
communication calls, echolocation sounds, and environmental sounds 
important to marine mammals. Therefore, under certain circumstances, 
marine mammals whose acoustical sensors or environment are being 
severely masked could also be impaired from maximizing their 
performance fitness in survival and reproduction.
    Masking occurs at the frequency band that the animals utilize. 
Therefore, since noise generated from vibratory pile driving activity 
is mostly concentrated at low frequency ranges, it may have less effect 
on high frequency echolocation sounds by odontocetes (toothed whales). 
However, lower frequency man-made noises are more likely to affect 
detection of communication calls and other potentially important 
natural sounds such as surf and prey noise. It may also affect 
communication signals when they occur near the noise band and thus 
reduce the communication space of animals (e.g., Clark et al., 2009) 
and cause increased stress levels (e.g., Foote et al., 2004; Holt et 
al., 2009).
    Unlike TS, masking, which can occur over large temporal and spatial 
scales, can potentially affect the species at population, community, or 
even ecosystem levels, as well as individual levels. Masking affects 
both senders and receivers of the signals and could have long-term 
chronic effects on marine mammal species and populations. Recent 
science suggests that low frequency ambient sound levels have increased 
by as much as 20 dB (more than three times in terms of SPL) in the 
world's ocean from pre-industrial periods, and most of these increases 
are from distant shipping (Hildebrand 2009). For WSDOT's Seattle Colman 
Ferry Terminal construction activities, noises from vibratory pile 
driving and pile removal contribute to the elevated ambient noise 
levels in the project area, thus increasing potential for or severity 
of masking. Baseline ambient noise levels in the vicinity of project 
area are high due to ongoing shipping, construction and other 
activities in the Puget Sound.
    Finally, marine mammals' exposure to certain sounds could lead to 
behavioral disturbance (Richardson et al., 1995), such as: Changing 
durations of surfacing and dives, number of blows per surfacing, or 
moving direction and/or speed; reduced/increased vocal activities; 
changing/cessation of certain behavioral activities (such as 
socializing or feeding); visible startle response or aggressive 
behavior (such as tail/fluke slapping or jaw clapping); avoidance of 
areas where noise sources are located; and/or flight responses (e.g., 
pinnipeds flushing into water from haulouts or rookeries).
    The onset of behavioral disturbance from anthropogenic noise 
depends on both external factors (characteristics of noise sources and 
their paths) and the receiving animals (hearing, motivation, 
experience, demography) and is also difficult to predict (Southall et 
al., 2007). Currently NMFS uses a received level of 160 dB re 1 [mu]Pa 
(rms) to predict the onset of behavioral harassment from impulse noises 
(such as impact pile driving), and 120 dB re 1 [mu]Pa (rms) for 
continuous noises (such as vibratory pile driving). For the WSDOT's 
Seattle Colman Ferry Terminal construction activities, both of these 
noise levels are considered for effects analysis because WSDOT plans to 
use both impact and vibratory pile driving, as well as vibratory pile 
removal.
    The biological significance of many of these behavioral 
disturbances is difficult to predict, especially if the detected 
disturbances appear minor. However, the consequences of behavioral 
modification could be biologically significant if the change affects 
growth, survival, and/or reproduction, which depends on the severity, 
duration, and context of the effects.

Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are 
associated with elevated sound levels produced by pile driving and 
removal associated with marine mammal prey species. However, other 
potential impacts to the surrounding habitat from physical disturbance 
are also possible. These potential effects are discussed below.
    SPLs from impact pile driving have the potential to injure or kill 
fish in the

[[Page 31584]]

immediate area. These few isolated fish mortality events are not 
anticipated to have a substantial effect on prey species population or 
their availability as a food resource for marine mammals.
    Studies also suggest that larger fish are generally less 
susceptible to death or injury than small fish. Moreover, elongated 
forms that are round in cross section are less at risk than deep-bodied 
forms. Orientation of fish relative to the shock wave may also affect 
the extent of injury. Open water pelagic fish (e.g., mackerel) seem to 
be less affected than reef fishes. The results of most studies are 
dependent upon specific biological, environmental, explosive, and data 
recording factors.
    The huge variation in fish populations, including numbers, species, 
sizes, and orientation and range from the detonation point, makes it 
very difficult to accurately predict mortalities at any specific site 
of detonation. Most fish species experience a large number of natural 
mortalities, especially during early life-stages, and any small level 
of mortality caused by the WSDOT's impact pile driving will likely be 
insignificant to the population as a whole.
    For non-impulsive sound such as that of vibratory pile driving, 
experiments have shown that fish can sense both the strength and 
direction of sound (Hawkins 1981). Primary factors determining whether 
a fish can sense a sound signal, and potentially react to it, are the 
frequency of the signal and the strength of the signal in relation to 
the natural background noise level.
    The level of sound at which a fish will react or alter its behavior 
is usually well above the detection level. Fish have been found to 
react to sounds when the sound level increased to about 20 dB above the 
detection level of 120 dB (Ona 1988); however, the response threshold 
can depend on the time of year and the fish's physiological condition 
(Engas et al., 1993).
    During construction activity at Colman Dock, only a small fraction 
of the available habitat would be ensonified at any given time. 
Disturbance to fish species would be short-term and fish would return 
to their pre-disturbance behavior once the pile driving activity 
ceases. Thus, the proposed construction would have little, if any, 
impact on the abilities of marine mammals to feed in the area where 
construction work is planned.
    Finally, the time of the proposed construction activity would avoid 
the spawning season of the ESA-listed salmonid species between March 
and July.
    Short-term turbidity is a water quality effect of most in-water 
work, including pile driving.
    Cetaceans are not expected to be close enough to the Colman 
terminal to experience turbidity, and any pinnipeds will be transiting 
the terminal area and could avoid localized areas of turbidity. 
Therefore, the impact from increased turbidity levels is expected to be 
discountable to marine mammals.
    For these reasons, WSDOT's proposed Seattle Multimodal construction 
at Colman Dock is not expected to have adverse effects to marine mammal 
habitat in the area.

Estimated Take

    This section includes an estimate of the number of incidental 
``takes'' likely to occur pursuant to this IHA, which will inform both 
NMFS' consideration of whether the number of takes is ``small'' and the 
negligible impact determination.
    Harassment is the only means of take expected to result from these 
activities. 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).
    As described previously in the section Potential Effects of 
Specified Activities on Marine Mammals and their Habitat, no incidental 
take is anticipated to result from effects on prey species or as a 
result of turbidity. Level B Harassment is expected to occur as 
discussed below and is authorized in the numbers identified below.
    As described below, a small number of takes by Level A Harassment 
are authorized, as the calculation show that Level A takes could occur.
    The death of a marine mammal is also a type of incidental take. 
However, as described previously, no mortality is anticipated or 
authorized to result from this activity.

Basis for Takes

    Take estimates are based on average marine mammal density in the 
project area multiplied by the area size of ensonified zones within 
which received noise levels exceed certain thresholds (i.e., Level A 
and/or Level B harassment) from specific activities, then multiplied by 
the total number of days such activities would occur. Certain 
adjustments were made for marine mammals whose local abundance are 
known through long-term monitoring efforts. Therefore, their local 
abundance data are used for take calculation instead of general animal 
density (see below).

Basis for Threshold Calculation

    As discussed above, in-water pile removal and pile driving 
(vibratory and impact) generate loud noises that could potentially 
harass marine mammals in the vicinity of WSDOT's proposed Seattle 
Multimodal Project at Colman Dock.
    Under the NMFS' Technical Guidance for Assessing the Effects of 
Anthropogenic Sound on Marine Mammal Hearing (Guidance), dual criteria 
are used to assess marine mammal auditory injury (Level A harassment) 
as a result of noise exposure (NMFS 2016). The dual criteria under the 
Guidance provide onset thresholds in instantaneous peak SPLs 
(Lpk) as well as 24-hr cumulative sound exposure levels 
(SELcum or LE) that could cause PTS to marine 
mammals of different hearing groups. The peak SPL is the highest 
positive value of the noise field, log transformed to dB in reference 
to 1 [mu]Pa.
[GRAPHIC] [TIFF OMITTED] TN07JY17.000

where p(t) is acoustic pressure in pascal or micropascal, and 
pref is reference acoustic pressure equal to 1 [mu]Pa.
    The cumulative SEL is the total sound exposure over the entire 
duration of a given day's pile driving activity, specifically, pile 
driving occurring within a 24-hr period.

[[Page 31585]]

[GRAPHIC] [TIFF OMITTED] TN07JY17.001

where p(t) is acoustic pressure in pascal or micropascal, 
pref is reference acoustic pressure equals to 1 [mu]Pa, 
t1 marks the beginning of the time, and t2 the 
end of time.
    For onset of Level B harassment, NMFS continues to use the root-
mean-square (rms) sound pressure level (SPLrms) at 120 dB re 
1 [mu]Pa and 160 dB re 1 [mu]Pa as the received levels from non-impulse 
(vibratory pile driving and removal) and impulse sources (impact pile 
driving) underwater, respectively. The SPLrms for pulses 
(such as those from impact pile driving) should contain 90 percent of 
the pulse energy, and is calculated by
[GRAPHIC] [TIFF OMITTED] TN07JY17.002

where p(t) is acoustic pressure in pascal or micropascal, 
pref is reference acoustic pressure equals to 1 [mu]Pa, 
t1 marks the beginning of the time, and t2 the 
end of time. In the case of an impulse noise, t1 marks the 
time of 5 percent of the total energy window, and t2 the 
time of 95 percent of the total energy window.
    Table 3 summarizes the current NMFS marine mammal take criteria.

                 Table 3--Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater
 
----------------------------------------------------------------------------------------------------------------
                                           PTS onset thresholds                    Behavioral thresholds
          Hearing group          -------------------------------------------------------------------------------
                                       Impulsive         Non-impulsive         Impulsive         Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans....  Lpk,flat: 219 dB..  LE,LF,24h: 199 dB.
                                  LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans....  Lpk,flat: 230 dB..  LE,MF,24h: 198 dB.
                                  LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans...  Lpk,flat: 202 dB..  LE,HF,24h: 173 dB.  Lrms,flat: 160 dB.  Lrms,flat: 120 dB.
                                  LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW)...........  Lpk,flat: 218 dB..  LE,PW,24h: 201 dB.
(Underwater)....................  LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW)..........  Lpk,flat: 232 dB..  LE,OW,24h: 219 dB.
(Underwater)....................  LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
  calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
  thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
  a reference value of 1[mu]Pa2s. In this Table, thresholds are abbreviated to reflect American National
  Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
  frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
  being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
  hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
  designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
  that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
  exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
  is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
  exceeded.

Sound Levels and Acoustic Modeling for the Proposed Construction 
Activity

Source Levels
    The project includes vibratory removal of 14-in timber piles, 
vibratory driving and removal of 24-in steel piles, vibratory driving 
of 30- and 36-in steel piles, and impact pile driving of 30- and 36-in 
steel piles. In February of 2016, WSDOT conducted a test pile project 
at Colman Dock in order to gather data to select the appropriate piles 
for the project. The test pile project measured impact pile driving of 
24- and 36-in steel piles. The measured results from the project are 
used here to provide source levels for the prediction of isopleths 
ensonified over thresholds for the Seattle project. The results show 
that the SPLrms for impact pile driving of 36-in steel pile 
is 189 dB re 1 [micro]Pa at 14 m from the pile (WSDOT 2016b). This 
value is also used for impact driving of the 30-in steel piles, which 
is a precautionary approach.
    Source level of vibratory pile driving of 36-in steel piles is 
based on test pile driving at Port Townsend in 2010 (Laughlin 2011). 
Recordings of vibratory pile driving were made at a distance of 10 m 
from the pile. The results show that the SPLrms for 
vibratory pile driving of 36-in steel pile was 177 dB re 1 [micro]Pa 
(WSDOT 2016a).
    Up to three pile installation crews may be active during the day 
within the project footprint. Each crew will use one vibratory and one 
impact hammer, and it is possible that more than 1 hammer, up to 3 
impact and/or vibratory hammers, could be conducted concurrently for 
driving the 24-, 30-, and 36-in piles. Overlapping noise fields created 
by multiple hammer use are handled differently for impact and vibratory 
hammers. When more than one impact hammer is being used close

[[Page 31586]]

enough to another impact hammer, the cumulative acoustic energy is 
accounted for by including all hammer strikes. When more than one 
vibratory hammer is being used close enough to another vibratory hammer 
to create overlapping noise fields, additional sound levels are added 
to account for the overlap, creating a larger zone of influence (ZOI). 
A simplified nomogram method (Kinsler et al., 2000) is proposed to 
account for the addition of noise source levels for multiple vibratory 
hammers, as shown in Table 4. Using this method, the source levels of 
24-, 30-, and 36-in piles during vibratory pile driving are adjusted to 
182 dB re 1 [micro]Pa (at 10 m).

                 Table 4--Multiple Sound Level Addition
------------------------------------------------------------------------
                                                              Add the
                                                           following to
            When two sound  levels differ by                the higher
                                                            level  (dB)
------------------------------------------------------------------------
0-1 dB..................................................               3
2-3 dB..................................................               2
4-9 dB..................................................               1
>10 dB..................................................               0
------------------------------------------------------------------------

    For vibratory pile removal, vibratory pile driving data were used 
as proxies because we conservatively consider noises from pile removal 
would be the same as those from pile driving.
    The source level of vibratory removal of 14-in timber piles were 
based on measurements conducted at the Port Townsend Ferry Terminal 
during vibratory removal of a 12-in timber pile by WSDOT (Laughlin 
2011). The recorded source level is 152 dB re 1 [micro]Pa at 16 m from 
the pile. In the absence of spectral data for timber pile vibratory 
driving, the weighting factor adjustment (WFA) recommended by NMFS 
acoustic guidance (NMFS 2016) was used to determine these zones.
    These source levels are used to compute the Level A ensonified 
zones and to estimate the Level B harassment zones. For Level A 
harassment zones, zones calculated using cumulative SEL are all larger 
than those calculated using SPLpeak, therefore, only zones 
based on cumulative SEL for Level A harassment are used.

Estimating Injury Zones

    Calculation and modeling of applicable ensonified zones are based 
on source measurements of comparable types and sizes of piles driven by 
different methods (impact vs. vibratory hammers) either during the 
Colman test pile driving or at a different location within the Puget 
Sound. As mentioned earlier, isopleths for injury zones are based on 
cumulative SEL (LE) criteria.
    For peak SPL (Lpk), distances to marine mammal injury 
thresholds were calculated using a simple geometric spreading model 
using a transmission loss coefficient of 15:
[GRAPHIC] [TIFF OMITTED] TN07JY17.003

where SLMeasure is the measured source level in dB re 1 [micro]Pa, EL 
is the specific received level of threshold, DMeasure is the distance 
(m) from the source where measurements were taken, and R is the 
distance (radius) of the isopleth to the source in meters.
    For cumulative SEL (LE), distances to marine mammal exposure 
thresholds were computed using spectral modeling that incorporates 
frequency specific absorption. First, representative pile driving 
sounds recorded during test pile driving with impact and vibratory 
hammers were used to generate power spectral densities (PSDs), which 
describe the distribution of power into frequency components composing 
that sound, in 1-Hz bins. Parserval's theorem, which states that the 
sum of the square of a function is equal to the sum of the square of 
its transform, was applied to ensure that all energies within a strike 
(for impact pile driving) or a given period of time (for vibratory pile 
driving) were captured through the fast Fourier transform, an algorithm 
that converts the signal from its original domain (in this case, time 
series) to a representation in frequency domain. For impact pile 
driving, broadband PSDs were generated from SPLrms time 
series of a total of 270 strikes with a time window that contains 90 
percent of pulse energy. For vibratory pile driving, broadband PSDs 
were generated from a series of continuous 1-second SEL. Broadband PSDs 
were then adjusted based on weighting functions of marine mammal 
hearing groups (Finneran 2016) by using the weighting function as a 
band-pass filter. For impact pile driving, cumulative exposures (Esum) 
were computed by multiplying the single rms pressure squared by rms 
pulse duration for the specific strike, then by the number of strikes 
(provided in Table 1) required to drive one pile, then by the number of 
piles to be driven in a given day, as shown in the equation below:
[GRAPHIC] [TIFF OMITTED] TN07JY17.004

where prms,i is the rms pressure, [tau] is the rms pulse duration for 
the specific strike, Ns is the anticipated number of strikes (provided 
in Table 1) needed to install one pile, and N is the number of total 
piles to be installed.
    For vibratory pile driving, cumulative exposures were computed by 
summing 1-second noise exposure by the duration needed to drive on pile 
(provided in Table 1), then by the number of piles to be driven in a 
given day, as shown in the equation below:
[GRAPHIC] [TIFF OMITTED] TN07JY17.005


[[Page 31587]]


where E1s is the 1-second noise exposure, and [Delta]t is 
the duration (provided in Table 1) need to install 1 pile by vibratory 
piling.
    Frequency-specific transmission losses, TL(f), were then computed 
using practical spreading along with frequency-specific absorption 
coefficients that were computed with nominal seawater properties (i.e., 
salinity = 35 psu, pH = 8.0) at 15[deg]C at the surface by
[GRAPHIC] [TIFF OMITTED] TN07JY17.006

where a(f) is dB/km, and R is the distance (radius) of the specific 
isopleth to the source in meters. For broadband sources such as those 
from pile driving, the transmission loss is the summation of the 
frequency-specific results.
Approach to Estimate Behavioral Zones
    As mentioned earlier, isopleths to Level B behavioral zones are 
based on root-mean-square SPL (SPLrms) that are specific for 
impulse (impact pile driving) and non-impulse (vibratory pile driving) 
sources. Distances to marine mammal behavior thresholds were calculated 
using a simple geometric spreading equation as shown in Equation (4).
    For Level B harassment zones from vibratory pile driving of 30-in 
and 36-in piles, the ensonified zones are calculated based on practical 
spreading of back-calculated source level of 36-in pile driving 
adjusted for 3 hammers operating concurrently by adding 5 dB. The 
results show that the 120 dB re 1 [micro]Pa isopleth is at 13.6 km. For 
Level B harassment zone from vibratory pile driving of 24-in and 36-in 
piles, WSDOT conducted site measurements during Seattle test pile 
driving project using 24-in and 36-in steel piles. The results show 
that underwater noise cannot be detected at a distance of 5 km (3 mi) 
and 6.88 km (4.3 mi) for the 24-in and 36-in steel piles, respectively. 
Since this measurement was based on pile driving using 1 hammer, the 
Level B harassment zone for 24- and 36-in steel pile is adjusted by 
factoring in a 5 dB difference (see above) using the following 
equation, based on the inverse law of acoustic propagation (i.e., dB 
difference in transmission loss is the inverse of distance difference 
in logarithm):
[GRAPHIC] [TIFF OMITTED] TN07JY17.007

where dBdifference is the 5 dB difference, R3-hammer is the 
distance from the pile where piling noise is no longer audible, and 
R1-hammer is the measured distance from the pile where 
piling noise is no longer audible, which is 5 km for the 24-in steel 
pile and 6.88 km for the 36-in steel pile.
    The result show that when using 3 vibratory hammers concurrently, 
the distance from the pile to where pile noise is no longer audible is 
11 km for the 24-in steel pile and 14.8 km for the 36-in steel pile. 
Since the landmass intercepts the water at 13.6 km, this distance is 
used as the Level B harassment distance for the 36-in steel pile.
    A summary of the measured and modeled harassment zones is provided 
in Table 5.

                                                         Table 5--Distances to Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          Injury zone (m)
          Pile type, size & pile driving method          --------------------------------------------------------------------------------  Behavior zone
                                                            LF cetacean     MF cetacean     HF cetacean       Phocid          Otariid           (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vibratory 14'' timber...................................               8             0.7            11.9             4.9             0.3           2,175
Vibratory 24'' steel....................................             255              65           1,365             115              10          11,000
Vibratory 30'' & 36'' steel.............................             285              65           1,455             125              10          13,600
Impact 30'' & 36'' steel................................           1,845              75           2,835             465              35           1,200
--------------------------------------------------------------------------------------------------------------------------------------------------------

Estimated Takes From Proposed Construction Activity

    Incidental take is estimated for each species by estimating the 
likelihood of a marine mammal being present within a Level A or Level B 
harassment zone during active pile driving or removal. The Level A 
calculation includes a duration component, along with an assumption 
(which can lead to overestimates in some cases) that animals within the 
zone stay in that area for the whole duration of the pile driving 
activity within a day. For all marine mammal species except harbor 
seals and California sea lions, estimated takes are calculated based on 
ensonified area for a specific pile driving activity multiplied by the 
marine mammal density in the action area, multiplied by the number of 
pile driving (or removal) days. Marine mammal density data for all 
animals except harbor porpoise are from the U.S. Navy Marine Species 
Density Database (Navy 2015). Harbor porpoise density is based on a 
recent study by Jefferson et al. (2016) for the Seattle area near the 
Colman Dock. Harbor seal and California sea lion takes are based on 
observations near Seattle, since these data provide the best 
information on distribution and presence of these species that are 
often associated with nearby haulouts (see below). A summary of marine 
mammal density, days and Level A and Level B harassment areas from 
different pile driving and removal activities is provided in Table 6.

[[Page 31588]]



       Table 6--Summary of Marine Mammal Density, Days and Level A and Level B Ensonified Areas From Different Pile Driving and Removal Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Density  (km-   Vibratory 14-   Vibratory 24-   Vibratory 30-   Vibratory 36-   Impact 30-in    Impact 36-in
                 Species                        2)           in timber       in steel        in steel        in steel          steel           steel
--------------------------------------------------------------------------------------------------------------------------------------------------------
Days                                      ..............              11              15               3              26               2              26
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Level A Areas (m\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pacific harbor seal.....................        1.219000              50          41,548          49,087          49,087         394,075         394,075
California sea lion.....................         0.12660           0.126             314             314             314           3,849           3,849
Steller sea lion........................        0.036800           0.126             314             314             314           3,849           3,849
Killer whale, transient.................        0.002373              50          13,273          13,273          13,273          17,672          17,672
Killer whale, Southern Resident.........        0.020240              50          13,273          13,273          13,273          17,672          17,672
Gray whale..............................        0.000510             154         153,311         189,384         189,384       4,129,836       4,129,836
Humpback whale..........................         0.00070             154         153,311         189,384         189,384       4,129,836       4,129,836
Harbor porpoise.........................        0.156000          13,273       2,547,906       2,678,940       2,678,940       8,190,639       8,190,639
Dall's porpoise.........................        0.047976          13,273       2,547,906       2,678,940       2,678,940       8,190,639       8,190,639
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Level B Areas (m\2\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pacific harbor seal.....................        1.219000       5,419,792      58,338,838      74,290,934      74,290,934       1,926,124       1,926,124
California sea lion.....................         0.12660       5,419,792      58,338,838      74,290,934      74,290,934       1,926,124       1,926,124
Steller sea lion........................        0.036800       5,419,792      58,338,838      74,290,934      74,290,934       1,926,124       1,926,124
Killer whale, transient.................        0.020240       5,419,792      58,338,838      74,290,934      74,290,934       1,926,124       1,926,124
Killer whale, Southern Resident.........        0.002373       5,419,792      58,338,838      74,290,934      74,290,934       1,926,124       1,926,124
Gray whale..............................        0.000510       5,419,792      58,338,838      74,290,934      74,290,934       1,926,124       1,926,124
Humpback whale..........................         0.00070       5,419,792      58,338,838      74,290,934      74,290,934       1,926,124       1,926,124
Harbor porpoise.........................            0.69       5,419,792      58,338,838      74,290,934      74,290,934       1,926,124       1,926,124
Dall's porpoise.........................        0.047976       5,419,792      58,338,838      74,290,934      74,290,934       1,926,124       1,926,124
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The Level A take total was further adjusted by subtracting animals 
expected to occur within the exclusion zone, where pile driving 
activities are suspended when an animal is observed in or approaching 
the zone (see Mitigation section). Further, the number of Level B takes 
was adjusted to exclude those already counted for Level A takes.
    The harbor seal take estimate is based on local seal abundance 
information off the Seattle area from WSDOT's Seattle Colman test pile 
project in 2016. Marine mammal visual monitoring during the 10-day 
period of the project indicates that a maximum of 13 harbor seals were 
observed in the general area of the Colman Dock project (WSDOT 2012). 
Based on a total of 83 pile-driving days for the WSDOT Seattle Colman 
Dock project, it is estimated that up to 1,079 harbor seals could be 
exposed to noise levels associated with ``take.'' Since 28 days would 
involve impact pile driving of 30-in and 36-in steel piles with Level A 
zones beyond shutdown zones (465 m vs 160 m shutdown zone), we consider 
that 364 harbor seals exposed during these 28 days would experience 
Level A harassment.
    The California sea lion take estimate is based on local sea lion 
abundance information from the Seattle's Elliott Bay Sea Wall Project 
(City of Seattle 2014). Marine mammal visual monitoring during the Sea 
Wall Project indicates that up to 47 sea lions were observed in the 
general area of the Colman Dock project at any given time (City of 
Seattle 2014). Based on a total of 83 pile driving days for the WSDOT 
Seattle Colman Dock project, it is estimated that up to 3,901 
California sea lions could be exposed to noise levels associated with 
``take''. Since the Level A zones of otariids are all very small (<35m, 
Table 5), we do not consider it likely that any sea lions would be 
taken by Level A harassment. Therefore, all California sea lion takes 
estimated here are expected to be taken by Level B harassment.
    A summary of estimated marine mammal takes is listed in Table 7.

 Table 7--Estimated Numbers of Marine Mammals That May Be Exposed to Received Noise Levels That Cause Level A or
                                               Level B Harassment
----------------------------------------------------------------------------------------------------------------
                                     Estimated       Estimated       Estimated
             Species               Level A take    Level B take     total take       Abundance      Percentage
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal.............             364             715           1,079          11,036            9.77
California sea lion.............               0           3,901           3,901         296,750            1.31
Steller sea lion................               0             116             116          71,562            0.16
Killer whale, transient.........               0               7               7             243               3
Killer whale, Southern Resident.               0               0               0              78               0
Gray whale......................               1              15              16          20,990            0.08
Humpback whale..................               0               0               0           1,918               0
Harbor porpoise.................             233           2,056           2,289          11,233           20.37
Dall's porpoise.................              16             137             153          25,750            0.59
----------------------------------------------------------------------------------------------------------------


[[Page 31589]]

Mitigation

    Under section 101(a)(5)(D) of the MMPA, NMFS shall prescribe the 
``permissible methods of taking by harassment 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 subsistence 
uses.''
    To ensure that the ``least practicable adverse impact'' will be 
achieved, NMFS evaluates mitigation measures in consideration of the 
following factors in relation to one another: The manner in which, and 
the degree to which, the successful implementation of the measure(s) is 
expected to reduce impacts to marine mammals, marine mammal species or 
stocks, their habitat, and their availability for subsistence uses 
(latter where relevant); the proven or likely efficacy of the measures; 
and the practicability of the measures for applicant implementation.
    For WSDOT's proposed Seattle Multimodal Project at Colman Dock, 
WSDOT worked with NMFS and prescribed the following mitigation measures 
to minimize the potential impacts to marine mammals in the project 
vicinity. The primary purposes of these mitigation measures are to 
minimize sound levels from the activities, to monitor marine mammals 
within designated ZOIs and exclusion zones corresponding to NMFS' 
current Level B and Level A harassment thresholds and, to implement 
shut-down measures for certain marine mammal species when they are 
detected approaching the exclusion zones or actual take numbers are 
approaching the authorized take numbers.

Time Restriction

    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted. In addition, all in-water 
construction will be limited to the period between August 1, 2017, and 
February 15, 2018.

Use of Noise Attenuation Devices

    To reduce impact on marine mammals, WSDOT shall use a marine pile 
driving energy attenuator (i.e., air bubble curtain system), or other 
equally effective sound attenuation method (e.g., dewatered cofferdam) 
for all impact pile driving.

Establishing and Monitoring Level A, Level B Harassment Zones, and 
Exclusion Zones

    Before the commencement of in-water construction activities, which 
include impact pile driving and vibratory pile driving and pile 
removal, WSDOT shall establish Level A harassment zones where received 
underwater SPLs or SELcum could cause PTS (see above).
    WSDOT shall also establish Level B harassment zones where received 
underwater SPLs are higher than 160 dBrms and 120 
dBrms re 1 [mu]Pa for impulse noise sources (impact pile 
driving) and non-impulses noise sources (vibratory pile driving and 
pile removal), respectively.
    WSDOT shall establish a maximum 160-m Level A exclusion zone for 
all marine mammals. For Level A harassment zones that are smaller than 
160 m from the source, WSDOT shall establish exclusion zones that 
correspond to the estimated Level A harassment distances, but shall not 
be less than 10 m.
    A summary of exclusion zones is provided in Tables 8a and 8b.

  Table 8a--Exclusion Zones for Various Pile Driving Activities and Marine Mammal Hearing Groups (for Non-ESA-
                                                 Listed Species)
----------------------------------------------------------------------------------------------------------------
                                                                Exclusion zone (m)
 Pile type, size & pile driving  -------------------------------------------------------------------------------
             method                 LF cetacean     MF cetacean     HF cetacean       Phocid          Otariid
----------------------------------------------------------------------------------------------------------------
14'' timber pile, vibratory.....              10              10              12              10              10
24'' steel pile, vibratory......             255              65             160             115              10
30'' & 36'' steel pile,                      285              65             160             125              10
 vibratory......................
30'' & 36'' steel pile, impact..             500              75             160             160              35
----------------------------------------------------------------------------------------------------------------


 Table 8b--Exclusion Zones for Various Pile Driving Activities and ESA-
                      Listed Marine Mammal Species
------------------------------------------------------------------------
                                                Exclusion zone (m)
                                         -------------------------------
  Pile type, size & pile driving method                      Southern
                                          Humpback whale     resident
                                                           killer  whale
------------------------------------------------------------------------
14'' timber pile, vibratory.............           2,175           2,175
24'' steel pile, vibratory..............          11,000          11,000
30'' & 36'' steel pile, vibratory.......          13,600          13,600
30'' & 36'' steel pile, impact..........           1,845           1,200
------------------------------------------------------------------------

    NMFS-approved protected species observers (PSO) shall conduct an 
initial survey of the exclusion zones to ensure that no marine mammals 
are seen within the zones before impact pile driving of a pile segment 
begins. If marine mammals are found within the exclusion zone, pile 
driving of the segment will be delayed until they move out of the area. 
If a marine mammal is seen above water and then dives below, the 
contractor will wait 30 minutes. If no marine mammals are seen by the 
observer in that time it can be assumed that the animal has moved 
beyond the exclusion zone.
    If pile driving of a segment ceases for 30 minutes or more and a 
marine mammal is sighted within the designated exclusion zone prior to 
commencement of pile driving, the observer(s) must notify the pile 
driving operator (or other authorized individual) immediately and 
continue to monitor the exclusion zone. Operations may not resume until 
the marine mammal has exited the exclusion zone or 30 minutes have 
elapsed since the last sighting.

[[Page 31590]]

Soft Start

    A ``soft-start'' technique is intended to allow marine mammals to 
vacate the area before the impact pile driver reaches full power. 
Whenever there has been downtime of 30 minutes or more without impact 
pile driving, the contractor will initiate the driving with ramp-up 
procedures described below.
    Soft start for impact hammers requires contractors to provide an 
initial set of three strikes from the impact hammer at 40 percent 
energy, followed by a 1-minute waiting period, then two subsequent 
three-strike sets. Each day, WSDOT will use the soft-start technique at 
the beginning of impact pile driving, or if pile driving has ceased for 
more than 30 minutes.

Shutdown Measures

    WSDOT shall implement shutdown measures if a marine mammal is 
detected within an exclusion zone or is about to enter an exclusion 
zone listed in Tables 8a and 8b.
    WSDOT shall also implement shutdown measures if southern resident 
killer whales or humpback whales are sighted within the vicinity of the 
project area and are approaching the Level B harassment zone (ZOI) 
during in-water construction activities.
    If a killer whale approaches the ZOI during pile driving or 
removal, and it is unknown whether it is a Southern Resident killer 
whale or a transient killer whale, it shall be assumed to be a Southern 
Resident killer whale and WSDOT shall implement the shutdown measure.
    If a Southern Resident killer whale, an unidentified killer whale, 
or a humpback whale enters the ZOI undetected, in-water pile driving or 
pile removal shall be suspended until the whale exits the ZOI to avoid 
further Level B harassment.
    Further, WSDOT shall implement shutdown measures if the number of 
authorized takes for any particular species reaches the limit under the 
IHA and if such marine mammals are sighted within the vicinity of the 
project area and are approaching the Level B harassment zone during in-
water construction activities.

Coordination With Local Marine Mammal Research Network

    Prior to the start of pile driving for the day, the Orca Network 
and/or Center for Whale Research will be contacted by WSDOT to find out 
the location of the nearest marine mammal sightings. The Orca Sightings 
Network consists of a list of over 600 (and growing) residents, 
scientists, and government agency personnel in the U.S. and Canada. 
Sightings are called or emailed into the Orca Network and immediately 
distributed to other sighting networks including: The NMFS Northwest 
Fisheries Science Center, the Center for Whale Research, Cascadia 
Research, the Whale Museum Hotline and the British Columbia Sightings 
Network.
    Sightings information collected by the Orca Network includes 
detection by hydrophone. The SeaSound Remote Sensing Network is a 
system of interconnected hydrophones installed in the marine 
environment of Haro Strait (west side of San Juan Island) to study orca 
communication, in-water noise, bottom fish ecology and local climatic 
conditions. A hydrophone at the Port Townsend Marine Science Center 
measures average in-water sound levels and automatically detects 
unusual sounds. These passive acoustic devices allow researchers to 
hear when different marine mammals come into the region. This acoustic 
network, combined with the volunteer (incidental) visual sighting 
network allows researchers to document presence and location of various 
marine mammal species.
    With this level of coordination in the region of activity, WSDOT 
will be able to get real-time information on the presence or absence of 
whales before starting any pile driving.
    Based on our evaluation of the mitigation measures described above, 
NMFS has determined that the prescribed mitigation measures provide the 
means effecting the least practicable adverse impact on the affected 
species or stocks and their habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, requirements pertaining to 
the monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
authorizations must include the suggested means of accomplishing the 
necessary monitoring and reporting that will result in increased 
knowledge of the species and of the level of taking or impacts on 
populations of marine mammals that are expected to be present in the 
proposed action area. Effective reporting is critical to both 
compliance and ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the 
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 marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors;
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks;
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat); and
     Mitigation and monitoring effectiveness.

Monitoring Measures

    WSDOT shall employ NMFS-approved PSOs to conduct marine mammal 
monitoring for its Seattle Multimodal Project. The PSOs will observe 
and collect data on marine mammals in and around the project area for 
30 minutes before, during, and for 30 minutes after all pile removal 
and pile installation work. NMFS-approved PSOs shall meet the following 
requirements:
    1. Independent observers (i.e., not construction personnel) are 
required;
    2. At least one observer must have prior experience working as an 
observer;
    3. Other observers may substitute education (undergraduate degree 
in biological science or related field) or training for experience;
    4. Where a team of three or more observers are required, one 
observer should be designated as lead observer or monitoring 
coordinator. The lead observer must have prior experience working as an 
observer; and
    5. NMFS will require submission and approval of observer CVs.
    Monitoring of marine mammals around the construction site shall be

[[Page 31591]]

conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). 
Due to the different sizes of ZOIs from different pile sizes, several 
different ZOIs and different monitoring protocols corresponding to a 
specific pile size will be established.
     During 14-in timber pile removal, two land-based PSOs will 
monitor the exclusion zones and Level B harassment zone.
     During impact pile driving of 30-in and 36-in steel piles, 
4 land-based PSOs will monitor the Level A and Level B harassment 
zones.
     During vibratory pile driving of 24-in, 30-in, and 36-in 
steel piles, 5 land-based PSOs and two vessel-based PSOs on ferries 
will monitor the Level A and Level B harassment zones.
     If the sound source verification (SSV) measurements show 
that Level B harassment distance for the vibratory pile driving of 24-
in, 30-in, and 36-in steel piles is less than 10 km, monitoring efforts 
listed above can be reduced to 4 land-based PSOs and one vessel-based 
PSO on a ferry.
     If the sound source verification (SSV) measurements show 
that Level B harassment distance for the vibratory pile driving of 24-
in, 30-in, and 36-in steel piles is less than 10 km, 4 land-based PSOs 
and one vessel-based PSO on a ferry will monitor the Level A and level 
B harassment zones.
    Locations of the land-based PSOs and routes of monitoring vessels 
are shown in WSDOT's Marine Mammal Monitoring Plan, which is available 
online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.
    To verify the required monitoring distance, the exclusion zones and 
ZOIs will be determined by using a range finder or hand-held global 
positioning system device.
    In addition, WSDOT shall conduct SSV measurements when conduction 
vibratory pile driving of 24-in, 30-in, and 36-in steel piles using 
more than one hammer.

Reporting Measures

    WSDOT will be required to submit a draft monitoring report within 
90 days after completion of the construction work or the expiration of 
the IHA, whichever comes earlier. This report would detail the 
monitoring protocol, summarize the data recorded during monitoring, and 
estimate the number of marine mammals that may have been harassed. NMFS 
would have an opportunity to provide comments on the report, and if 
NMFS has comments, WSDOT would address the comments and submit a final 
report to NMFS within 30 days after receiving NMFS' comments.
    In addition, NMFS would require WSDOT to notify NMFS' Office of 
Protected Resources and NMFS' West Coast Stranding Coordinator within 
48 hours of sighting an injured or dead marine mammal in the 
construction site. WSDOT shall provide NMFS and the Stranding Network 
with the species or description of the animal(s), the condition of the 
animal(s) (including carcass condition, if the animal is dead), 
location, time of first discovery, observed behaviors (if alive), and 
photo or video (if available).
    In the event that WSDOT finds an injured or dead marine mammal that 
is not in the construction area, WSDOT would report the same 
information as listed above to NMFS within 48 hours of sighting.

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes, alone, is not 
enough information on which to base an impact determination. In 
addition to considering the number of marine mammals that might be 
``taken'' through harassment, NMFS considers 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, etc.), as well as effects on habitat, the status of the 
affected stocks, and the likely effectiveness of the mitigation. 
Consistent with the 1989 preamble for NMFS's implementing regulations 
(54 FR 40338; September 29, 1989), the impacts from other past and 
ongoing anthropogenic activities are incorporated into these analyses 
via their impacts on the environmental baseline (e.g., as reflected in 
the regulatory status of the species, population size and growth rate 
where known, ongoing sources of human-caused mortality, or ambient 
noise levels).
    To avoid repetition, this introductory discussion of our analyses 
applies to all the species listed in Table 7, given that the 
anticipated effects of WSDOT's Seattle Multimodal Project at Colman 
Dock activities involving pile driving and pile removal on marine 
mammals are expected to be relatively similar in nature. There is no 
information about the nature or severity of the impacts, or the size, 
status, or structure of any species or stock that would lead to a 
different analysis by species for this activity, or else species-
specific factors would be identified and analyzed.
    Although a few marine mammal species (364 harbor seals, 1 gray 
whale, 233 harbor porpoises, and 16 Dall's porpoise) are estimated to 
experience Level A harassment in the form of PTS if they stay within 
the Level A harassment zone during the entire pile driving for the day, 
the degree of injury is expected to be mild and is not likely to affect 
the reproduction or survival of the individual animals. It is expected 
that, if hearing impairments occurs, most likely the affected animal 
would lose a few dB in its hearing sensitivity, which in most cases is 
not likely to affect its survival and recruitment. Hearing impairment 
that occur for these individual animals would be limited to the 
dominant frequency of the noise sources, i.e., in the low-frequency 
region below 2 kHz. Therefore, the degree of PTS is not likely to 
affect the echolocation performance of the two porpoise species, which 
use frequencies mostly above 100 kHz. Nevertheless, for all marine 
mammal species, it is known that in general animals avoid areas where 
sound levels could cause hearing impairment. Therefore, it is not 
likely that an animal would stay in an area with intense noise that 
could cause severe levels of hearing damage. In addition, even if an 
animal receives a TTS, the TTS would be a one-time event from the 
exposure, making it unlikely that the TTS would evolve into PTS. 
Furthermore, Level A take estimates are based on the assumption that 
the animals are randomly distributed in the project area and would not 
avoid intense noise levels that could cause TTS or PTS. In reality, 
animals tend to avoid areas where noise levels are high (Richardson et 
al. 1995).
    For these species and the rest of the three marine mammal species, 
takes that are anticipated and authorized are expected to be limited to 
short-term Level B harassment (behavioral and TTS). Marine mammals 
present in the vicinity of the action area and taken by Level B 
harassment would most likely show overt brief disturbance (startle 
reaction) and avoidance of the area from elevated noise levels during 
pile driving and pile removal and the implosion noise. A few marine 
mammals could experience TTS if they occur within the Level B TTS ZOI. 
However, as discussed earlier in this document, TTS is a

[[Page 31592]]

temporary loss of hearing sensitivity when exposed to loud sound, and 
the hearing threshold is expected to recover completely within minutes 
to hours. Therefore, it is not considered an injury.
    The project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' section. There is 
no ESA designated critical area in the vicinity of the Seattle 
Multimodal Project at Colman Dock area. The project activities would 
not permanently modify existing marine mammal habitat. The activities 
may kill some fish and cause other fish to leave the area temporarily, 
thus impacting marine mammals' foraging opportunities in a limited 
portion of the foraging range. However, because of the short duration 
of the activities and the relatively small area of the habitat that may 
be affected, the impacts to marine mammal habitat are not expected to 
cause significant or long-term negative consequences. Therefore, given 
the consideration of potential impacts to marine mammal prey species 
and their physical environment, WSDOT's proposed construction activity 
at Colman Dock would not adversely affect marine mammal habitat.
     Injury--only 4 species of marine mammals would experience 
Level A affects in the form of mild PTS, which is expected to be of 
small degree.
     Behavioral disturbance--seven species/stocks of marine 
mammals would experience behavioral disturbance and TTS from the 
WSDOT's Seattle Colman Dock project. However, as discussed earlier, the 
area to be affected is small and the duration of the project is short. 
Therefore, the overall impacts are expected to be insignificant.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total take from the proposed activity 
will have a negligible impact on all affected marine mammal species or 
stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, NMFS compares the number of 
individuals anticipated to be taken to the most appropriate estimation 
of the relevant species or stock size in our determination of whether 
an authorization would be limited to small numbers of marine mammals.
    The takes represent less than 21 percent of all populations or 
stocks with known abundance potentially impacted (see Table 7 in this 
document). These take estimates represent the percentage of each 
species or stock that could be taken by both Level A and Level B 
harassments. In general, the numbers of marine mammals estimated to be 
taken are small proportions of the total populations of the affected 
species or stocks.
    Based on the analysis contained herein of the proposed activity 
(including the precribed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS finds that small numbers of 
each species or stock will be taken relative to the population size of 
the affected species or stocks.

Unmitigable Adverse Impact Subsistence Analysis and Determination

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

Endangered Species Act (ESA)

    Issuance of an MMPA authorization requires compliance with the ESA 
for any species that are listed or proposed as threatened or 
endangered.
    The MMPA California-Oregon-Washington stock of humpback whale and 
the Southern Resident stock of killer whale are the only marine mammal 
species listed under the ESA that could occur in the vicinity of 
WSDOT's proposed construction projects. Two DPSs of humpback whales, 
the Mexico DPS and the Central America DPS, are listed as threatened 
and endangered under the ESA, respectively. NMFS worked with WSDOT to 
implement shutdown measures in the IHA that would avoid takes of both 
SR killer whale and humpback whales. Therefore, NMFS determined that no 
ESA-listed marine mammal species would be affected as a result of 
WSDOT's Seattle Colman Dock construction project.

Authorization

    As a result of these determinations, NMFS has issued an IHA to the 
Washington State Department of Transportation for conducting ferry 
terminal construction at Colman Dock in Seattle Washington, provided 
the previously described mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: July 3, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2017-14261 Filed 7-6-17; 8:45 am]
BILLING CODE 3510-22-P