00014917_Exh 7-3_IHA Permit.pdf

INCIDENTAL HARASSMENT AUTHORIZATION

The Oregon Department of Transportation (ODOT) and its designees are hereby authorized under section 101(a)(5)(D) of the Marine Mammal Protection Act (MMPA; 16 U.S.C.

1371(a)(5)(D)) to incidentally harass marine mammals, under the following conditions:

1. This incidental harassment authorization (IHA) is effective for 1 year upon written notification from the Holder of the Authorization (“Holder”) to the National Marine

Fisheries Service (NMFS), but not beginning later than 1 year from the date of issuance or extending beyond 2 years from the date of issuance.

2. This IHA authorizes take incidental to pile installation and removal, as specified in

ODOT’s IHA application, associated with the Yaquina Bay Dolphin Replacement Project in Newport, Oregon. Hereafter (unless otherwise specified) the term “pile driving” is used to refer to both pile installation and pile removal.

3. General Conditions

(a) A copy of this IHA must be in the possession of the Holder of the Authorization

(Holder), supervisory construction personnel, lead protected species observers

(PSOs), and any other relevant designees of the Holder operating under the authority of this IHA at all times that activities subject to this IHA are being conducted.

(b) The species and/or stocks authorized for taking are listed in Table 1. Authorized take, by Level B harassment only, is limited to the species and numbers listed in

Table 1.

(c) The taking by Level A harassment, serious injury, or death of any of the species listed in Table 1 or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this

IHA. Any taking exceeding the authorized amounts listed in Table 1 is prohibited and may result in the modification, suspension, or revocation of this IHA.

(d) The Holder must ensure that construction supervisors and crews, the monitoring team, and relevant ODOT staff are trained prior to the start of activities subject to this IHA, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project must be trained prior to commencing work.

(e) ODOT, construction supervisors and crews, PSOs, and relevant ODOT staff must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 meters (m) (32.8 feet (ft)) of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary to avoid direct physical interaction.

4. Mitigation Requirements

(a) The Holder must employ PSOs and establish monitoring locations as described in section 5 of this IHA and the Marine Mammal Monitoring Plan (Monitoring

Plan). The Holder must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions.

(b) Monitoring must take place from 30 minutes prior to initiation of pile driving activity (i.e., pre-start clearance monitoring) through 30 minutes post-completion of pile driving activity. Monitoring for 30 minutes must take place whenever a break in vibratory pile driving of 30 minutes or longer occurs

(c) Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the Lead PSO to determine that the shutdown zones indicated in

Table 2 are clear of marine mammals. Pile driving may commence following 30 minutes of observation when the determination is made that the shutdown zones are clear of marine mammals.

(d) If a marine mammal is observed entering or within the shutdown zones indicated in Table 2, pile driving activity must be delayed or halted. Pile driving must be commenced or resumed as described in condition 4(e) of this IHA.

(e) If pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until the animal has voluntarily exited and been visually confirmed beyond the shutdown zone indicated in Table 2 or 15 minutes have passed without re-detection of the animal.

(f) Pile driving activity must be halted (as described in condition 4(d) of this IHA) upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone (as shown in Table

2).

5. Monitoring Requirements

(a) Marine mammal monitoring must be conducted in accordance with the conditions in this section and the Monitoring Plan.

(b) Monitoring must be conducted by qualified, NMFS-approved PSOs (i.e., ODOT biologists), in accordance with the following conditions:

(i) PSOs must be independent of the activity contractor (for example, employed by a subcontractor) and have no other assigned tasks during monitoring periods.

(ii) At least one PSO must have prior experience performing the duties of a

PSO during construction activity pursuant to a NMFS-issued incidental take authorization.

(iii) Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a

NMFS-issued incidental take authorization.

(iv) Where a team of three or more PSOs is required, a lead observer or monitoring coordinator must be designated. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization or Letter of Concurrence (LOC).

(v) PSOs must be approved by NMFS prior to beginning any activity subject to this IHA.

(c) The Holder must establish monitoring locations, as described in the Monitoring

Plan. For all pile driving activities, one PSO must be assigned to each active pile driving location to monitor the shutdown zones. A minimum of two PSOs and one

Department of Transportation inspector must be used in total, located at the following sites:

(i) PSOs will be assigned to the active pile driving location (onsite);

(ii) One stationed at the best practicable land-based vantage point to observe the eastern portion of Yaquina Bay and the designated shutdown zones directly around the work area;

(iii) One located at the best practicable land-based vantage point to monitor the western (seaward) portion of the monitoring zones; and

(iv) Additional ODOT construction inspector(s) may also be on-site during all pile removal activities to ensure contract specifications are followed and to ensure that all radio communications from PSOs are implemented.

(d) PSOs must record all observations of marine mammals, regardless of distance from the pile being driven, as well as the additional data indicated in section 6 of this IHA.

6. Reporting

(a) The Holder must submit its draft report(s) on all monitoring conducted under this

IHA within 90 calendar days of the completion of monitoring or 60 calendar days prior to the requested issuance of any subsequent IHA for construction activity at the same location, whichever comes first. A final report must be prepared and submitted within 30 calendar days following receipt of any NMFS comments on the draft report. If no comments are received from NMFS within 30 calendar days of receipt of the draft report, the report shall be considered final.

(b) All draft and final monitoring reports must be submitted to

PR.ITP.MonitoringReports@noaa.gov and ITP.potlock@noaa.gov.

(c) The marine mammal report must contain the informational elements described in the Monitoring Plan and, at minimum, must include:

(i) Dates and times (begin and end) of all marine mammal monitoring;

(ii) Construction activities occurring during each daily observation period, including:

A. The number and type of piles that were driven and the method

(e.g., vibratory); and

B. Total duration of driving time for each pile (vibratory driving).

(iii) PSO locations during marine mammal monitoring;

(iv) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including

Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;

(v) Upon observation of a marine mammal, the following information:

A. Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting;

B. Time of sighting;

C. Identification of the animal(s) (e.g., genus/species, lowest possible taxonomic level, or unidentified), PSO confidence in identification, and the composition of the group if there is a mix of species;

D. Distance and location of each observed marine mammal relative to the pile being driven for each sighting;

E. Estimated number of animals (min/max/best estimate);

F. Estimated number of animals by cohort (adults, juveniles, neonates, group composition, etc.);

G. Animal’s closest point of approach and estimated time spent within the harassment zone;

H. Description of any marine mammal behavioral observations (e.g., observed behaviors such as feeding or traveling), including an assessment of behavioral responses thought to have resulted from the activity (e.g., no response or changes in behavioral state such as ceasing feeding, changing direction, flushing, or breaching);

(vi) Number of marine mammals detected within the harassment zones, by species; and

(vii) Detailed information about implementation of any mitigation (e.g., shutdowns and delays), a description of specific actions that ensued, and resulting changes in behavior of the animal(s), if any.

(d) The Holder must submit all PSO data electronically in a format that can be queried such as a spreadsheet or database (i.e., digital images of data sheets are not sufficient).

(e) Reporting injured or dead marine mammals:

In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Holder must report the incident to the Office of Protected Resources (OPR), NMFS (PR.ITP.MonitoringReports@noaa.gov and ITP.Potlock@noaa.gov) and to the NOAA West Coast Regional Stranding

Network (1-866-767-6114) as soon as feasible. If the death or injury was clearly caused by the specified activity, the Holder must immediately cease the activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this IHA. The Holder must not resume their activities until notified by NMFS.

The report must include the following information:

(i) Description of the incident;

(ii) Environmental conditions (e.g., Beaufort sea state, visibility);

(iii) Description of all marine mammal observations in the 24 hours preceding the incident;

(iv) Photographs or video footage of the animal(s) (if equipment is available).

(v) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);

(vi) Species identification (if known) or description of the animal(s) involved;

(vii) Condition of the animal(s) (including carcass condition if the animal is dead);

(viii) Observed behaviors of the animal(s), if alive;

(ix) If available, photographs or video footage of the animal(s); and

(x) General circumstances under which the animal was discovered.

(f) Other situational report:

(i) In the event that the Holder observes any entangled marine mammals, the

Holder must report the sighting to the Entanglement Reporting Hotline (1-

877-SOS-WHAL (1-877-767-9425)) and the United States Coast Guard

(VHF Channel 16); and

(ii) If any derelict gear is observed, the Holder must report this to the Derelict

Gear hotline (1-855-542-3935).

7. This Authorization may be modified, suspended or revoked if the Holder fails to abide by the conditions prescribed herein (including, but not limited to, failure to comply with monitoring or reporting requirements), or if NMFS determines: (1) the authorized taking is likely to have or is having more than a negligible impact on the species or stocks of affected marine mammals, or (2) the prescribed measures are likely not or are not effecting the least practicable adverse impact on the affected species or stocks and their habitat.

8. Renewals

On a case-by-case basis, NMFS may issue a one-time, one-year renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical, or nearly identical, activities (or a subset of those activities) are planned or (2) the specified activities will not be completed by the time the IHA expires and a renewal would allow for completion of the activities, provided all of the following conditions are met:

(a) A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (note a renewal IHA expiration date cannot extend beyond one year from expiration of this IHA).

(b) The request for renewal must include the following:

(i) An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed for this IHA, are a subset of the activities, or include changes so minor (e.g., reduction in pile size) that the changes do not affect the previous analyses, mitigation and monitoring requirements, or take estimates (with the exception of reducing the type or amount of take).

(ii) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.

(c) Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings made in support of this

IHA remain valid.

Kimberly Damon-Randall, Director, Office of Protected Resources

National Marine Fisheries Service

Table 1. Authorized Incidental Take.

Common name Scientific name Stock Level B harassment

Harbor porpoise Phocoena phocoena Northern California/Southern

Oregon

Steller sea lion Eumetopias jubatus Eastern DPS 92

California sea lion Zalophus californianus U.S. 23,000

Harbor seal Phoca vitulina richardii Oregon/Washington coast 2,760

Northern elephant seal Mirounga angustirostris California breeding 23

Table 2. Shutdown and Monitoring Zones.

Pile size, type, and method Method Minimum shutdown zone Level B Harassment monitoring zone LFC HFC VHFC PW OW

Old piles: 16-inch steel pile (battered)

Vibratory pile driving -removal 28a

7,356.4b

(2,500)c New piles: 16-inch steel piles (battered)

Vibratory pile driving-installation

--- Other in-water work 10 ---

Note: LFC = low-frequency cetaceans; HFC = high-frequency cetaceans; VHFC = very high-frequency cetaceans;

PW = phocid pinnipeds (in-water); OW = otariids pinnipeds (in-water).

a – This represents the greatest distance calculated to the Level A harassment threshold for marine mammals, rounded up to the nearest whole number.

b – This distance represent the calculated radius of the zone. The actual zone was truncated by landforms and the presence of jetties (see footnote c).

c – The Level B harassment zone has been adjusted downward to account for the presence of jetties in the project area, which are expected to have a sound reduction effect