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AGENCY:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
ACTION:
Notice; issuance of an incidental harassment authorization.
SUMMARY:
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Washington State Department of Transportation (WSDOT) to incidentally harass marine mammals during construction activities associated with the Seattle Slip 3 Vehicle Transfer Span (VTS) Replacement Project in Seattle, Washington.
DATES:
This authorization is effective from September 12, 2024 through September 11, 2025.
ADDRESSES:
Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities. In case of problems accessing these documents, please call the contact listed below.
FOR FURTHER INFORMATION CONTACT:
Austin Demarest, Office of Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are promulgated or, if the taking is limited to harassment, an incidental harassment authorization is issued.
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation measures”). NMFS must also prescribe requirements pertaining to monitoring and reporting of such takings. The definition of key terms such as “take,” “harassment,” and “negligible impact” can be found in the MMPA and NMFS's implementing regulations (see 16 U.S.C. 1362; 50 CFR 216.103).The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
Summary of Request
On December 19, 2023, NMFS received a request from WSDOT for an IHA to take marine mammals incidental to Seattle Slip 3 VTS Replacement Project in Elliott Bay of the Puget Sound, Seattle, WA. Following NMFS' review of the application, WSDOT submitted revised versions on March 4, April 8, April 18, and April 29, 2024. A final revised monitoring plan was submitted on May 14, 2024 and a final revised application was submitted on May 16, 2024. The application was deemed adequate and complete on May 20, 2024. WSDOT's request is for take of 12 species of marine mammals, by Level B harassment only. The proposed IHA was published for public comment on July 30, 2024 (89 FR 61064). Neither WSDOT nor NMFS expect serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.
Description of the Specified Activity and Anticipated Impacts
Overview
WSDOT plans to replace the Seattle Slip 3 VTS at Colman Dock which is located in Elliott Bay of the Puget Sound in Seattle, Washington. The purpose of the construction project is to preserve the transportation function of an aging, seismically deficient transfer span. The existing VTS will be removed and replaced with a hydraulic transfer span consisting of steel drilled shafts and a new steel wingwall. In-water construction includes cutting sheet piles, installation and removal of steel piles with a vibratory hammer, and proofing steel piles with an impact hammer to drive them to the maximum depth and ensure load bearing capacity. In-water pile removal and driving with vibratory and impact hammers may result in incidental take by Level B harassment of 12 marine mammal species within Elliott Bay and the Central Puget Sound.
A detailed description of the planned construction project is provided in the Federal Register notice for the proposed IHA (89 FR 61064, July 30, 2024). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to WSDOT was published in the Federal Register on July, 30 2024 (89 FR 61064). That notice described, in detail, WSDOT's activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. In that notice, we requested public input on the request for authorization described therein, our analysis, the proposed authorization, and any other aspect of the notice of the proposed IHA, and requested that interested persons submit relevant information, suggestions, and comments. During the 30-day public comment period, NMFS received a total of three public comment letters. Two of these were from Federal agencies stating simply that they had no comments, and the other comment letter was from a private citizen.
The only substantive comment and NMFS' response is provided below, and all public comment letters are available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-washington-department-transportations-seattle-slip-3-vehicle.
Comment: One commenter presented a suggestion regarding protected species observer (PSO) monitoring coverage from the Seattle-Bainbridge Island ferries during the vibratory installation of 24, 30, and 78-in steel pipe piles, stating that there are instances when only one Seattle-Bainbridge Island ferry is operating due to scheduling issues, insufficient staffing, or boat mechanical issues which necessitate additional PSO coverage at those times. The commenter suggested adding an alternate monitoring location for the second ferry based PSO if any of these operational issues occurred.
Response: NMFS agrees with the commenter's concern and added an alternate location for the second ferry based PSO to monitor from if there are delays or only one ferry is operational during the installation of the 24, 30 and 78-in pipe piles. NMFS refers the commenter to the Monitoring and Reporting section below and the Monitoring Requirements section of the final issued IHA.
Changes From the Proposed IHA to Final IHA
In the Monitoring and Reporting section of the proposed IHA Federal Register notice (89 FR 61064, July 30, 2024) one PSO was required to be stationed on each Seattle-Bainbridge Island ferry during the vibratory installation of 24, 30, and 78-in steel pipe piles. An alternate monitoring location for the second ferry stationed PSO was added to the Monitoring and Reporting section of this notice for instances when there are ferry delays or only one ferry is operational. Figure 2 was added as a spatial reference for the alternate monitoring location. These changes have also been added to the Monitoring Requirements section of the final issued IHA.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species. NMFS fully considered all of this information, and we refer the reader to these descriptions, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments ) and more general information about these species ( e.g., physical and behavioral descriptions) may be found on NMFS' website ( https://www.fisheries.noaa.gov/find-species ).
Table 1 lists all species or stocks for which take is expected and authorized for this activity and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no serious injury or mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species or stocks and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. Survey abundance (as compared to stock or species abundance) is the total number of individuals estimated within the survey area, which may or may not align completely with a stock's geographic range as defined in the SARs. For some species, this geographic area or surveys may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Pacific and Alaska SARs. All values presented in table 1 are the most recent available at the time of publication (including from the draft 2023 SARs) and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.
Table 1—Marine Mammal Species Likely Impacted by the Specified Activities
| Common name | Scientific name | Stock | ESA/MMPA status; Strategic (Y/N) | Stock abundance (CV, N min , most recent abundance survey) | PBR | Annual M/SI |
|---|---|---|---|---|---|---|
| Order Artiodactyla—Cetacea—Mysticeti (baleen whales) | ||||||
| Family Eschrichtiidae: | ||||||
| Gray whale | Eschrichtius robustus | Eastern N Pacific | -, -, N | 26,960 (0.05, 25,849, 2016) | 801 | 131 |
| Minke whale | Balaenoptera acutorostrata | CA/OR/WA | -, -, N | 915 (0.792, 509, 2018) | 4.1 | 0.19 |
| Odontoceti (toothed whales, dolphins, and porpoises) | ||||||
| Family Delphinidae: | ||||||
| Killer whale | Orcinus orca | West Coast Transient | -, -, N | 349 (N/A, 349, 2018) | 3.5 | 0.4 |
| Bottlenose dolphin | Tursiops truncatus | CA/OR/WA offshore | -, -, N | 3,477 (0.696, 2,048, 2018) | 19.70 | ≥0.82 |
| Long beaked common dolphin | Delphinus capensis | CA | -, -, N | 83,379 (0.216, 69,636, 2018) | 668 | ≥29.7 |
| Pacific white-sided Dolphin | Lagenorhynchus obliquidens | CA/OR/WA | -, -, N | 34,999 (0.222, 29,090, 2018) | 279 | 7 |
| Family Phocoenidae (porpoises): | ||||||
| Dall's porpoise | Phocoenoides dalli | CA/OR/WA | -, -, N | 16,498 (0.61, 10,286, 2018) | 99 | ≥0.66 |
| Harbor porpoise | Phocoena phocoena | Washington Inland Waters | -, -, N | 11,233 (0.37, 8,308, 2015) | 66 | ≥7.2 |
| Order Carnivora—Pinnipedia | ||||||
| Family Otariidae (eared seals and sea lions): | ||||||
| CA sea lion | Zalophus californianus | U.S. | -, -, N | 257,606 (N/A, 233,515, 2014) | 14,011 | >321 |
| Steller sea lion | Eumetopias jubatus | Eastern | -, -, N | 36,308 (N/A, 36,308, 2022) | 2,178 | 93.2 |
| Family Phocidae (earless seals): | ||||||
| Harbor seal | Phoca vitulina | Washington Northern Inland Waters | -, -, N | 16,451 (0.07, 15,462, 2019) | 928 | 40 |
| Northern elephant seal | Mirounga angustirostris | CA Breeding | -, -, N | 187,386 (N/A, 85,369, 2013) | 5,122 | 13.7 |
| Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy ( https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/ ). | ||||||
| ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. | ||||||
| NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. | ||||||
| These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined ( e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. | ||||||
| Nest is based upon count of individuals identified from photo-ID catalogs in analysis of a subset of data from 1958-2018. | ||||||
| Nest is best estimate of counts, which have not been corrected for animals at sea during abundance surveys. Estimates provided are for the U.S. only. | ||||||
| There is uncertainty in available population estimates due to limited surveys, limited reproductive data, and uncertainty in stock relationships and harvest statistics. |
Table 2—Marine Mammal Hearing Groups (NMFS, 2018)
| Hearing group | Generalized hearing range * |
|---|---|
| Low-frequency (LF) cetaceans (baleen whales) | 7 Hz to 35 kHz. |
| Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) | 150 Hz to 160 kHz. |
| High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, Cephalorhynchid, Lagenorhynchus cruciger & L. australis) | 275 Hz to 160 kHz. |
| Phocid pinnipeds (PW) (underwater) (true seals) | 50 Hz to 86 kHz. |
| Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) | 60 Hz to 39 kHz. |
| * Represents the generalized hearing range for the entire group as a composite ( i.e., all species within the group), where individual species' hearing ranges are typically not as broad. Generalized hearing range chosen based on ~65 dB threshold from normalized composite audiogram, with the exception for lower limits for LF cetaceans (Southall et al. 2007) and PW pinniped (approximation). |
Table 3—Seattle Slip 3 Vehicle Transfer Span Proxy Sound Source Levels for Pile Sizes and Driving Methods
| Pile type and size (in) | Method | Source level at 10 m (dB re 1 µPA) | Reference |
|---|---|---|---|
| 14-inch steel H-piles | Vibratory Removal | 153 dB rms | Laughlin (2019). |
| 24-inch steel pipe piles | Vibratory installation and removal | 174 dB rms | WSDOT (2011). |
| 24-inch steel pipe piles | Impact installation | 166 SEL, 176 dB rms, 194 dB peak | Greenbusch Group (2019). |
| 30-inch steel sheet piles | Vibratory installation | 174 dB rms | WSDOT (2011). |
| 78-inch steel pipe piles | Vibratory installation | 174 dB rms | WSDOT (2011). |
Table 4—Level A and Level B Harassment Zones
Table 5—Level A and Level B Ensonified Areas
Table 6—Marine Mammals Sighted at the Seattle Multimodal Project
Table 7—Estimated Take of Marine Mammal by Level B Harassment for 19 Days of In-Water Construction
Table 8—Shutdown Zones for All Pile-Driving Activities for the Seattle Slip 3 VTS Replacement Project
| Pile size and type | Pile driving method | Shutdown zones (m) | SRKW and HW shutdown zones (m) | ||||
|---|---|---|---|---|---|---|---|
| LF cetaceans | MF cetaceans | HF cetaceans | Phocids | Otarids | |||
| 14-in steel | Vibratory removal | 50 | 50 | 50 | 50 | 50 | 1,600 |
| 24-in steel | Vibratory installation and removal | 100 | 100 | 100 | 50 | 50 | * 15,410 |
| 24-in steel | Impact installation | 100 | 100 | 100 | 50 | 50 | 750 |
| 30-in steel | Vibratory installation | 100 | 100 | 100 | 50 | 50 | * 15,410 |
| 78-in steel | Vibratory Installation | 100 | 100 | 100 | 50 | 50 | * 15,410 |
| * 15,410 m is the maximum distance sound can travel before reaching land. |