Title 50

SECTION 217.235

217.235 Requirements for monitoring and reporting.

§ 217.235 Requirements for monitoring and reporting.

(a) Monitoring. (1) Qualified Marine Mammal Observers (MMOs) shall be used for both shore and vessel-based monitoring;

(2) All MMOs must be approved by NMFS;

(3) A qualified MMO is a third-party trained biologist with the following minimum qualifications:

(i) Visual acuity in both eyes (correction is permissible) sufficient to discern moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars or spotting scope may be necessary to correctly identify the target;

(ii) Advanced education in biological science, wildlife management, mammalogy or related fields (Bachelor's degree or higher is preferred);

(iii) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);

(iv) Experience or training in the field identification of marine mammals (cetaceans and pinnipeds);

(v) Sufficient training, orientation or experience with vessel operation and pile driving operations to provide for personal safety during observations;

(vi) Writing skills sufficient to prepare a report of observations; and

(vii) Ability to communicate orally, by radio, or in-person with project personnel to provide real time information on marine mammals observed in the area, as needed.

(4) MMOs must be equipped with the following:

(i) Binoculars (10x42 or similar), laser rangefinder, GPS, big eye binoculars and/or spotting scope 20-60 zoom or equivalent; and

(ii) Camera and video capable of recording any necessary take information, including data required in the event of an unauthorized take; and

(5) MMOs shall conduct monitoring as follows;

(i) During all pile driving and removal activities;

(ii) Only during daylight hours from sunrise to sunset when it is possible to visually monitor mammals;

(iii) Scan the waters for 30 minutes before and during all pile driving. If any species for which take is not authorized are observed within the area of potential sound effects during or 30 minutes before pile driving, the MMO(s) will immediately notify the on-site supervisor or inspector, and require that pile driving either not initiate or temporarily cease until the animals have moved outside of the area of potential sound effects;

(iv) If weather or sea conditions restrict the observer's ability to observe, or become unsafe for the monitoring vessel(s) to operate, pile installation shall not begin or shall cease until conditions allow for monitoring to resume;

(v) Trained land-based observers will be placed at the best vantage points practicable. The observers' position(s) will either be from the top of jetty or adjacent barge at the location of the pile activities and from Cape Disappointment Visitors Center during work at North and South Jetty, and Clatsop Spit for work at Jetty A;

(vi) Vessel-based monitoring for marine mammals must be conducted for all pile-driving activities at the North Jetty and two South Jetty offloading facilities. Two vessels may be utilized as necessary to adequately monitor the offshore ensonified zone;

(vii) Any marine mammals listed in § 217.236 entering into the Level B harassment zone will be recorded as take by the MMO and listed on the appropriate monitoring forms described below;

(viii) During pedestrian surveys, personnel will avoid as much as possible direct approach towards pinnipeds that are hauled out. If it is absolutely necessary to make movements towards pinnipeds, personnel will approach in a slow and steady manner to reduce the behavioral harassment to the animals as much as possible; and

(ix) Hydroacoustic monitoring shall be performed using methodology described in the November 2016 Addendum containing the Hydroacoustic Monitoring Plan.

(b) Reporting. (1) MMOs must use NMFS-approved monitoring forms and shall record the following information when a marine mammal is observed:

(i) Date and time that pile removal and/or installation begins and ends;

(ii) Construction activities occurring during each observation period;

(iii) Weather parameters (e.g., percent cover, visibility);

(iv) Water conditions [e.g., sea state, tidal state (incoming, outgoing, slack, low, and high)];

(v) Species, numbers, and, if possible, sex and age class of marine mammals;

(vi) Marine mammal behavior patterns observed, including bearing and direction of travel, and, if possible, the correlation to SPLs;

(vii) Distance from pile removal and/or installation activities to marine mammals and distance from the marine mammal to the observation point;

(viii) Locations of all marine mammal observations; and

(ix) Other human activity in the area.

(2) [Reserved]

(c) Annual report. (1) The Corps shall submit a draft annual report to NMFS Office of Protected Resources covering a given calendar year within 90 days of the last day of pile driving operations. The annual report shall include summaries of the information described in paragraph (b)(1) of this section.

(2) The Corps shall submit a final annual report to the Office of Protected Resources, NMFS, within 30 days after receiving comments from NMFS on the draft report.

(d) Notification of dead or injured marine mammals. (1) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this Authorization, such as an injury, serious injury, or mortality, The Corps shall immediately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS.

(i) The report must include the following information:

(A) Time, date, and location (latitude/longitude) of the incident;

(B) Description of the incident;

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

(E) Species identification or description of the animal(s) involved;

(F) Status of all sound source use in the 24 hours preceding the incident;

(G) Fate of the animal(s); and

(H) Photographs or video footage of the animal(s). Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with the Corps to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Corps may not resume their activities until notified by NMFS.

(ii) In the event that the Corps discovers an injured or dead marine mammal, and the lead MMO determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), the Corps shall immediately report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS. The report must include the same information identified in this paragraph (d). If the observed marine mammal is dead, activities may continue while NMFS reviews the circumstances of the incident. If the observed marine mammal is injured, measures described in this paragraph (d) must be implemented. NMFS will work with the Corps to determine whether additional mitigation measures or modifications to the activities are appropriate.

(iii) In the event that the Corps discovers an injured or dead marine mammal, and the lead MMO determines that the injury or death is not associated with or related to the activities authorized in the LOA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), the Corps shall report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. The Corps shall provide photographs or video footage or other documentation of the stranded animal sighting to NMFS. If the observed marine mammal is dead, activities may continue while NMFS reviews the circumstances of the incident. If the observed marine mammal is injured, measures described in this paragraph (d) must be implemented. In this case, NMFS will notify the Corps when activities may resume.