[Federal Register Volume 59, Number 215 (Tuesday, November 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27654]


[[Page Unknown]]

[Federal Register: November 8, 1994]


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DEPARTMENT OF COMMERCE
[I.D. 101994A]

 

Small Takes of Marine Mammals Incidental to Specified Activities

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

ACTION: Notice of receipt of application and proposed authorization for 
a small take exemption; request for comments.

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SUMMARY: NMFS has received a request from the Washington State 
Department of Corrections (WDOC) for authorization to take small 
numbers of harbor seals by harassment incidental to the nonexplosive 
demolition of the Still Harbor Dock Facility on McNeil Island in 
southern Puget Sound. Under section 101(a)(5)(D) of the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
authorize the WDOC to incidentally take by harassment a small number of 
harbor seals in the vicinity of Gertrude Island for a period of 1 year, 
provided certain mitigation measures are incorporated into the project.

DATES: Comments and information must be received no later than December 
8, 1994.

ADDRESSES: Comments on the application should be addressed to Dr. 
William W. Fox, Jr., Director, Office of Protected Resources, National 
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 
20910. A copy of the application and the Environmental Assessment (EA) 
may be obtained by writing to this address or by telephoning one of the 
contacts listed below.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, Office of 
Protected Resources at 301-713-2055, or Brent Norberg, Northwest 
Regional Office at 206-526-6733.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs 
the Secretary of Commerce to allow, upon request, the incidental, but 
not intentional taking 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 regulations are 
issued.
    Permission may be granted if the Secretary finds that the taking 
will have a negligible impact on the species or stock(s); will not have 
an unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses; and the permissible methods of taking 
and requirements pertaining to the monitoring and reporting of such 
taking are set forth.
    On April 30, 1994, the President signed Public Law 103-238, the 
Marine Mammal Protection Act Amendments of 1994. One part of this law 
added a new subsection 101(a)(5)(D) to the MMPA to establish an 
expedited process by which citizens of the United States can apply for 
an authorization to incidentally take small numbers of marine mammals 
by harassment. The MMPA defines ``harassment'' as:

    * * * any act of pursuit,torment, or annoyance which (a) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild; or (b) 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.

New subsection 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny issuance of the 
authorization.

Background of Request

    The Still Harbor Dock Facility is utilized by the WDOC as a foul 
weather landing facility for the McNeil Island Corrections Center.\1\ 
Significant deterioration of the existing facility, including the 
collapse on May 24, 1994, of the steel-pile-supported concrete center 
portion of the facility, has resulted in the need for major renovation 
in order to maintain a safe, functional facility. The renovation will 
include demolition of the existing facility; construction of a new 
pile-supported concrete access trestle approximately 520 ft long by 20 
ft wide and pierhead 165 ft long by 35 ft wide; a new 70 ft long by 30 
ft wide concrete float with gangway and steel guide pile system; a new 
50 ft long by 48 ft wide boathouse and concrete floats with gangway and 
steel guide pile system; and new waterlines, electrical power, and 
lighting. All new structures will be constructed within the footprint 
of the existing facility. Approximately 525 steel and timber pilings 
will be removed and replaced with approximately 152 new concrete, 
steel, and plastic piles. Additional information on the dock facility 
and the corrections center in general can be obtained by referring to 
the Final Environmental Impact Statement published by the WDOC in 1989 
in compliance with the State Environmental Policy Act of 1971 (Chapter 
43.21C, Revised Code of Washington).
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    \1\The Quitclaim Deed which transferred the property from 
Federal to state control, limits the use of the Still Harbor Dock to 
emergency situations because of the Gertrude Island harbor seal 
population.
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Summary of Request

    On August 18, 1994, the WDOC applied for an authorization under 
section 101(a)(5)(D) of the MMPA, for the take of a small number of 
harbor seals by harassment incidental to the demolition of the existing 
dock facility and the driving of approximately 152 concrete, plastic, 
and steel piles (90 concrete, 40 plastic, and 22 steel) of the Still 
Harbor Dock Facility on McNeil Island in southern Puget Sound, WA. In 
an effort to minimize noise from these activities, no explosives will 
be used for demolition and each concrete and plastic pile will be water 
jetted several feet into the substrate, then driven the final 3 ft into 
the set position. The 22 steel piles must be driven the entire depth 
(30 ft) to meet load requirements. The dock removal and construction 
schedules were developed to avoid reproductively sensitive life history 
periods of several species of wildlife, including harbor seals. The 
demolition and pile driving activities are anticipated to be completed 
in two season's specified work window from November 1 to February 15, 
1994-95, for demolition and November 15 to February 15, 1995-96, for 
pile driving. However, because an authorization issued under section 
101(a)(5)(D) of the MMPA is limited to a maximum of 1 year, a second 
application from the WDOC will be necessary to commence pile driving 
and construction of the dock facility. Therefore, this small take 
authorization, if granted, will only cover the demolition of the 
collapsed portion of the existing pier facility.

Alternatives to the Proposed Action

    No alternative options for the foul weather dock and moorage have 
been identified by the WDOC for McNeil Island. Without the availability 
of the foul weather dock, prisoners, visitors, staff and supplies would 
be unable to land on the island until the weather cleared. In addition, 
management of McNeil Island by the state as a wildlife preserve and 
sanctuary prohibits any new road construction for an alternative dock 
location under the Wildlife Restriction terms in the Quitclaim Deed of 
the property.

Harbor Seals

    The harbor seal (Phoca vitulina) is the only marine mammal species 
anticipated to be taken by the demolition of the Still Harbor Dock 
Facility. Gertrude Island is a low-tide, haulout, and rookery used by 
harbor seals of various ages. The southern part of the island is 
located approximately 1,100 ft from the Dock. The type of taking 
anticipated will be incidental harassment caused by the noise of 
demolition work. It is anticipated that the seals may be disturbed upon 
initiation of demolition activities on a daily basis, until they become 
acclimated to the activity. The number of seals disturbed will vary 
with tidal elevation at the time of initiation of the activity and is 
anticipated to be a subset of the peak total counts.
    Harbor seals are the most abundant pinniped in Washington State. 
Since passage of the MMPA in 1972, harbor seal populations in the 
inland waters of Washington have increased significantly. From 1983 to 
1992, the Washington inland waters stock of harbor seals increased at 
an annual rate of 6.1 percent (NMFS, 1994; Huber et al., in prep.).\2\ 
Boveng (1988) and NMFS (1991) estimated the minimum harbor seal 
population for the state's inland waters to be 6,062. More recently, 
NMFS (1994) estimates the inland population at 13,833 giving it a 
minimum population size estimate of 13,053. Puget Sound pup counts 
numbered 35 in 1977 and showed a +.22 annual rate of change to 142 pups 
in 1984 (NMFS, 1992). South Puget Sound pup counts are presently 
increasing at a +.58 annually from 365 total (25 pups) in 1984 to 706 
total (78 pups) in 1992 (NMFS data). Harbor seals occupy all nearshore 
areas of Puget Sound, including McNeil and Gertrude Islands throughout 
the year. Current data from the Washington Department of Fish and 
Wildlife (WDFW) and NMFS on Gertrude Island total seal counts over the 
last 5 years (1988-1993) indicate peak use in September and the lowest 
use in February. The most current data on maximum numbers of harbor 
seals using the Gertrude Island haulout during the demolition work 
window varies from 215 to 634, depending on the month (NMFS data). 
Seasonal increases at Gertrude Island have been ascribed to the onset 
of pupping and molting seasons, and a movement of seals from other 
haulout sites as disturbances increase during the summer (Jones and 
Stokes, 1989). The pupping season for the Gertrude Island herd extends 
from late July to late September, and the molting season extends from 
early October to early December (Newby, 1971; Skidmore and Babson, 
1981- both as cited in Jones and Stokes, 1989).
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    \2\Reference citations can be found in the EA on this action 
(see  ADDRESSES).
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    The impact to the harbor seal stock would be disturbance by sound 
which is anticipated to result in a negligible short-term impact to 
small numbers of harbor seals. When harbor seals are frightened by 
noise, or the approach of a boat, plane, human, or other potential 
predator, the seals will move rapidly to the relative safety of the 
waters. Depending upon the severity of the disturbance, seals may 
return to the original haulout site immediately, stay in the water for 
some length of time before hauling out, or haul out in a different area 
(Johnson, 1977; Skidmore and Babson, 1981 both as cited in Jones and 
Stokes, 1989). Disturbances tend to have a more serious effect when 
herds are pupping or nursing, when aggregations are dense, and during 
the molting season (Jones and Stokes, 1989).
    Short-term impact of the activities is expected to result in a 
temporary reduction in utilization of the haulout while work is in 
progress or until the seals acclimate to the disturbance. The specific 
activities will not result in any reduction in the number of seals, and 
they are expected to continue to occupy the same area of Gertrude 
Island. The abandonment of Gertrude Island as a harbor seal haulout and 
rookery is not anticipated due to the existing level of human activity 
on and around the dock for over 50 years (Jones and Stokes, 1989). 
Human activity increases annually in the late fall and winter months as 
use of the dock facility increases as a foul weather moorage for WDOC 
passenger ferries, barges, tugboats, and patrol boats.
    In addition, the activities are anticipated to have no long-term 
impact on the habitat of harbor seals. No direct physical impact to the 
habitat will occur due to the dock reconstruction as all new facilities 
will occur within the footprint of the original structure. Mitigation 
measures (discussed below) under an MMPA Incidental Harassment 
Authorization are expected to reduce any impacts to a negligible level.
    There has been no known subsistence use of the McNeil Island area 
or Gertrude Island.

Mitigation

    Efforts to ensure negligible impact of the dock renovation project 
on harbor seals identified by the WDOC and proposed for inclusion in 
the Incidental Harassment Authorization include:
    1. A November 1--February 15 work schedule to avoid adversely 
affecting harbor seals during the pupping and nursing season (July 15 
to October 15);
    2. A 1,000-ft no-entry buffer zone around Gertrude Island to 
minimize the impact of vessel traffic on harbor seals during the 
project (the buffer zone will be delineated by floats);
    3. Construction activities and seal behavior will be monitored by 
marine biologists to ensure that impacts on seals will be minimal;
    4. The demolition will not utilize any explosives;
    5. The removal of material and debris will be in the largest sizes 
possible and the removed materials will be transported off site for 
disposal; and
    6. To mitigate noise levels and thereby impacts to harbor seals, 
all construction equipment should comply as much as possible with 
applicable equipment noise standards of the U.S. Environmental 
Protection Agency (EPA, 1974) and all construction equipment should 
have noise control devices (e.g., mufflers) no less effective than 
those provided on the original equipment.

Monitoring

    The Gertrude Island haulout has been the site of several research 
projects for a number of years. Current research efforts by NMFS and 
WDFW include a radio tag study to learn about feeding behavior of the 
seals. A cooperative monitoring program by NMFS and WDFW is presently 
under discussion; alternatively, WDOC may contract with a private 
contractor to monitor activities. In addition, NMFS proposes to require 
WDOC to notify the Agency and the WDFW prior to work in order to 
coordinate monitoring of potential disturbance to seals.

Proposed Authorization

    NMFS proposes to issue an incidental harassment authorization for 1 
year for the demolition of the collapsed portion of the Still Harbor 
Dock Facility located on McNeil Island in the State of Washington, 
provided the above mentioned mitigation measures and reporting 
requirements are incorporated. NMFS has preliminarily determined that 
the demolition of the Still Harbor Dock Facility would result in the 
harassment taking of only small numbers of harbor seals, will have a 
negligible impact on the harbor seal stock and will not have an 
unmitigable adverse impact on the availability of this stock for 
subsistence uses.

Information Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning this request.

    Dated: November 1, 1994.
William W. Fox, Jr.,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 94-27654 Filed 11-7-94; 8:45 am]
BILLING CODE 3510-22-W