2024-27122. Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to BNSF Railway Bridge Heavy Maintenance Project in King County, Washington

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Department of Commerce

National Oceanic and Atmospheric Administration

1. [RTID 0648-XE400]

AGENCY:

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

ACTION:

Notice; issuance of incidental harassment authorizations.

SUMMARY:

NMFS has received a request from BNSF Railway (BNSF) for the reissuance of two consecutive previously issued incidental harassment authorizations (IHAs) with the only change being effective dates. The initial IHAs authorized take of seven species of marine mammals incidental to construction associated with the BNSF Railway Bridge Heavy Maintenance Project.

DATES:

These authorizations are effective from July 16, 2025, to July 15, 2026, and from July 16, 2026, to July 15, 2027, respectively.

FOR FURTHER INFORMATION CONTACT:

Rob Pauline, NMFS, [phone].

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 issued or, if the taking is limited to harassment, an IHA 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”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms used above are included in the relevant sections below and can be found in section 3 of the MMPA (16 U.S.C. 1362) and NMFS regulations at 50 CFR 216.103.

Summary of Request

On April 15, 2022, NMFS published a final notice of our issuance of two consecutive IHAs authorizing take of marine mammals incidental to the Bridge 6.3 Heavy Maintenance Project in King County, Washington (87 FR 22506, April 15, 2022). The effective dates of the IHAs were from July 16, ( print page 91693) 2022, to July 15, 2023, for year 1 and from July 16, 2023, to July 15, 2024, for year 2. On August 3, 2023, BNSF informed NMFS that the project would be delayed by one year and requested a reissuance of the initial IHAs. None of the work identified in the initial IHAs ( e.g., pile driving and removal) had occurred. Therefore, reissuance of the two consecutive IHAs was appropriate. The IHAs were effective from September 28, 2023, through July 15, 2024, for year 1 and from July 16, 2024, to July 15, 2025, for year 2 (88 FR 70932, October 13, 2023). On September 20, 2024, NMFS received a notice from BNSF indicating that work had been delayed and requesting the reissuance of identical IHAs to be effective from July 16, 2025, to July 15, 2026, for year 1 and from July 16, 2026, to July 15, 2027, for year 2. There is no new information that would affect the authorized take numbers or required mitigation, monitoring, and reporting requirements and, therefore, reissuance is appropriate. The only change is to the effective dates.

Summary of Specified Activity and Anticipated Impacts

The planned activities, mitigation, monitoring, and reporting requirements, authorized incidental take, and anticipated impacts on the affected stocks are the same as those analyzed for the previously issued IHAs.

The purpose of BNSF's Railway Bridge 6.3 Heavy Maintenance Project is to extend the service life of the existing structure by replacing several components of the existing movable span. The location, timing, and nature of the activities, including the types of equipment planned for use, are identical to those described in the initial IHAs. The mitigation and monitoring are also as prescribed in the initial IHAs.

Species that are expected to be taken by the planned activity include minke whale ( Balaenoptera acutorostrata), common bottlenose dolphin ( Tursiops truncatus), long-beaked common dolphin ( Delphinus capensis), harbor porpoise ( Phocoena phocoena), California sea lion ( Zalophus californianus), Steller sea lion ( Eumetopias jubatus) and harbor seal ( Phoca vitulina). A description of the methods and inputs used to estimate take anticipated to occur and, ultimately, the take that was authorized is found in the documents referenced below. The data inputs and methods of estimating take are identical to those used in the initial IHAs. NMFS has reviewed recent Stock Assessment Reports, information on relevant Unusual Mortality Events, and recent scientific literature, and determined that no new information affects our original analysis of impacts or take estimate under the initial IHAs.

We refer to the documents related to the previously issued IHAs, which include the Federal Register notice of the issuance of the initial IHAs for BNSF's construction work (87 FR 22506, April 15, 2022), BNSF's application, the Federal Register notice of the proposed IHAs (87 FR 4844, January 31, 2022), and all associated references and documents. These documents may be obtained by visiting: https://www.fisheries.noaa.gov/​action/​incidental-take-authorization-bnsf-railway-railway-bridge-heavy-maintenance-project-king.

Determinations

BNSF will conduct activities as analyzed in the initial IHAs. As described above, the number of authorized takes of the same species and stocks of marine mammals are identical to the numbers that were found to meet the negligible impact and small numbers standards and authorized under the initial IHA and no new information has emerged that would change those findings. The two consecutive, reissued IHAs include identical required mitigation, monitoring, and reporting measures as the initial IHAs, and there is no new information suggesting that our analysis or findings should change.

Based on the information contained here and in the referenced documents, NMFS has determined the following: (1) the required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; and (4) BNSF's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action.

National Environmental Policy Act

To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order 216-6A, NMFS must review our proposed action ( i.e., the issuance of an IHA) with respect to potential impacts on the human environment.

This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS determined at the time of issuance that the IHAs qualify to be categorically excluded from further NEPA review, and there is no new information that would affect this determination.

Endangered Species Act

Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally whenever we propose to authorize take for endangered or threatened species.

However, no incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.

Authorization

NMFS has issued two consecutive IHAs to BNSF for in-water construction activities associated with the specified activity from July 16, 2025, to July 15, 2026, for year 1 and from July 16, 2026, to July 15, 2027, for year 2. All previously described mitigation, monitoring, and reporting requirements from the initial IHAs are incorporated.

Dated: November 15, 2024.

Kimberly Damon-Randall,

Director, Office of Protected Resources, National Marine Fisheries Service.