[Federal Register Volume 63, Number 163 (Monday, August 24, 1998)]
[Notices]
[Pages 45048-45050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22647]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration
[I.D. 050198C]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Tatoosh Island, WA Storage Tank Removal Project

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

ACTION: Notice of issuance of an incidental harassment authorization.

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SUMMARY: In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that an Incidental 
Harassment Authorization (IHA) to take small numbers of California sea 
lions, Pacific harbor seals, and Steller sea lions by harassment 
incidental to removing three underground storage tanks (USTs) and one 
or two above-ground storage tanks (ASTs) at the Cape Flattery Light 
Station on Tatoosh Island, Callam County, WA. has been issued to the 
U.S. Coast Guard's Civil Engineering Unit, Oakland, CA (USCG).

DATES: This authorization is effective from August 31, 1998, through 
April 29, 1999.

ADDRESSES: A copy of the application and a list of references used in 
this document may be obtained by writing to the Chief, Marine Mammal 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by 
telephoning one of the contacts listed here.

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) and (D) 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 either regulations are issued or, if the taking is limited to 
harassment, a notice of a proposed authorization is provided to the 
public for review.
    Permission may 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 subsistence uses and that the permissible methods of 
taking and requirements pertaining to the monitoring and reporting of 
such takings are set forth. NMFS has defined ``negligible impact'' in 
50 CFR 216.103 as `` ...an impact resulting from the specified activity 
that cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival.''
    Subsection 101(a)(5)(D) of the MMPA established 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 now 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.

    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.

Summary of Request

    On April 27, 1998, NMFS received a request from the USCG for 
authorization to take small numbers of California sea lions (Zalophus 
californianus), Pacific harbor seals (Phoca vitulina), and Steller sea 
lions (Eumetopias jubatus) by harassment incidental to removing three 
USTs and one or two ASTs at the Cape Flattery Light Station on Tatoosh 
Island, Callam County, WA.
    The expected impact on marine mammals will be from the noise 
created by the arrival and departure of heavy-lift, tandem-rotor 
helicopters. Heavy-lift helicopters will be used to sling equipment and 
materials to and from the project. The most common heavy-lift 
helicopters commercially available in the Pacific Northwest are the 
Boeing 234 Chinook and Vertol 107-II.
    Large equipment and materials will be slung 30 to 50 ft (9.1 to 
15.2 m) below the helicopter, depending upon the load's dynamics. 
Personnel, small equipment, and supplies will be carried

[[Page 45049]]

internally. Materials removed from the site will include two 500-gallon 
(1,892.5-ltr) USTs, a 1,000-gallon (3,785-ltr) UST, contaminated water 
(estimated at 2,000 gallons (7,570 ltrs), contaminated soil (estimated 
at 15 cubic yards (11.5 m3), a 33,000-gallon (124,905-ltr) 
AST, and possibly a 2,000-gallon (7,570-ltr) AST.
    Removal of the USTs and ASTs will take place over a 3-week period, 
commencing on or about September 1, 1998. During approximately 4 days 
of work during that 3-week period, helicopters will make approximately 
23 trips to and from the site. It should be noted that this activity is 
required by 40 CFR part 280 subpart G, Out-of-Service UST Systems and 
Closure and is necessary to protect the environment from leaking UST/
ASTs.

Comments and Responses

    A notice of receipt of the application and proposed authorization 
was published on June 4, 1998 (63 FR 30476), and a 30-day public 
comment period was provided on the application and proposed 
authorization. Comments were received from one Federal agency. 
Information on the activity, the authorization request, and expected 
impact on marine mammal species, not subject to reviewer comments, can 
be found in the proposed authorization notice and is not repeated here.
    Comment 1: The Marine Mammal Commission (MMC), noting that a 
biological observer would be required to observe the closest marine 
mammal haulout whenever helicopters entered or left Tatoosh Island, 
recommended that a sufficient number of qualified observers be used to 
verify that no more than the authorized number of animals are harassed 
and that the effects are negligible.
    Response: NMFS disagrees with this recommendation. Because there 
are 4 haulouts on Tatoosh Island that are used by the three species 
(two located on the eastern side of the island and two to the northwest 
of the island) and because the distance between each pair of haulouts 
is large, it is unlikely that more than one or two haulouts will be 
affected during an individual flight. The affected haulout(s) will be 
predicted in advance of the flight, and the observer will monitor the 
haulout closest to the flight path. With an estimated 23 round-trip 
flights during the 4 planned flight days, a single observer should be 
able to systematically survey potentially affected haulouts and, based 
upon the effects at the haulout most likely to be impacted, to estimate 
the total taking by helicopter activities.
    In addition, it is highly unlikely that the estimated take under 
the MMPA will be reached since the USCG estimated ``worst case 
scenario'' is for the highest number of animals observed on the 
haulouts and for all animals to leave the shore during all overflights, 
even when some distance from the flight path. The total number of 
incidental harassment takes of seals and sea lions is estimated by the 
applicant at 12,650. The number by species is: Stellers, 6,900; harbor 
seal, 4,600; and California sea lions, 1,150. This estimate uses 550 
animals, the maximum potentional number, and 23 flights. NMFS concurs 
with the USCG that the number should be significantly less because each 
flight should not have the same impact on each haulout. It is also 
likely that, as the noise impacts continue, animals will temporarily 
leave the haulout for other haulouts rather than return only to be 
driven away again.
    Of more concern to NMFS than determining the number of possible 
harassment takes remain within quota is to ensure that behavioral 
observations are conducted for all three potentially affected pinniped 
species, especially Steller sea lions.
    Comment 2: The MMC recommended that the work is conducted as 
scheduled to avoid the seal and sea lion pupping and molting seasons.
    Response: NMFS has made a determination that the U.S. Coast Guard 
activity would have no more than a negligible impact on affected marine 
mammals based, in part, on the activity not taking place during the 
pupping and molting seasons. Harbor seal pupping along the coast of 
Washington occurs in May/June, and the molting season occurs between 
onset of pupping and 2 to 3 months afterward (Bigg, 1981), averaging 
about 6 weeks after molting (NMFS, 1992). Harbor seal molting takes 
approximately 2 months to complete (Stutz, 1967). Pups are weaned at 
approximately 4 weeks, and nursery sites are then abandoned.
    During the pupping and nursing periods, pups could be injured as 
adults move rapidly to the water or pups become separated from their 
mothers. Mother-pup separation or desertion is considered a significant 
cause of pup mortality in harbor seals. As the USCG activity will not 
take place earlier than September 1, no impact to breeding seals and 
unweaned young will occur.
    During the molting season, seals are generally hauled out for a 
long period of time, apparently to enhance hair growth by warming of 
the skin. The seals' metabolic rate is also decreased during molting. 
The effect of disturbance during the molting season has not been 
assessed, but could decrease the fitness of the seal, perhaps making it 
more susceptible to other mortality factors (Stokes and Jones, 1989). 
However, NMFS believes that it appears to be minor when compared to the 
possible effects of disturbances during the pupping and nursing season, 
and NMFS has concluded that harbor seals are evolutionarily adapted to 
return to the water during molting without incurring physical or 
physiological harm. In addition, most molting will have been completed 
by that time. However, in order to protect breeding harbor seals, the 
IHA has been written to require work to be completed before May 1, 
1999.
    Few Californa sea lion females and no pups have been sighted in 
Washington State waters, so the breeding stock of this species will not 
be affected by the USCG activity. For Steller sea lions the nearest 
breeding sites are in British Columbia and Oregon (NMFS, 1992).

Description of Marine Mammals Affected by the Activity

    California sea lions, Pacific harbor seals, and Steller sea lions 
are the three species expected to be impacted by the UST and AST 
removal. Information on these species can be found in the notice of 
proposed authorization (63 FR 30476, June 4, 1998) for this activity. 
Additional information can be found in Barlow et al. (1997).

Potential Effects on Marine Mammals

    The noise from the helicopters passing overhead is likely to 
startle any pinnipeds ashore at the time and result in their leaving 
the land for the water. Safety concerns will dictate the direction of 
arrival and departure of helicopters, but it is likely that many 
flights will be sufficiently close to one or more haulouts that 
pinnipeds ashore at the time will flee to the water. Hovering, which 
causes the most noise, will be limited to the time it takes to unsling 
the equipment at the UST/AST removal site on the top of the island. 
Except for helicopter operations, all other activities associated with 
the UST/AST removals will take place either on the mainland or on top 
of the island and should have no effect on the seals and sea lions.
    Seals and sea lions haul out onto dry land for various biological 
reasons, including sleep, predator avoidance, and thermoregulation. 
Startle response in harbor seals can vary from a temporary state of 
agitation by a few individuals to the complete abandonment of the beach 
area by the entire colony. Normally, when harbor seals are frightened 
by noise or by the

[[Page 45050]]

approach of a boat, plane, human, or potential predator, they will move 
rapidly to the relative safety of the water. 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. When disturbances occur 
late in the day, harbor seals may not haul out again until the next 
day.

Mitigation

    Because access to Tatoosh Island is limited to small boats and foot 
traffic, use of helicopters is the only identified means to remove the 
UST/ASTs. The USCG has scheduled the work to avoid the pupping and 
molting season for harbor seals.
    To further protect seals and sea lions, NMFS will require 
helicopters to remain at the greatest altitude practicable prior to 
landing on Tatoosh Island, to attain the greatest altitude practicable 
at time of takeoff, and to avoid direct overflights of the haulouts.

Monitoring and Reporting

    During any time that helicopter activities are undertaken, 
monitoring will be conducted by a minimum of one trained biologist who 
is approved in advance by NMFS. Observations will be made at the 
haulout site nearest the planned flight path of the helicopter. If 
neither seals nor sea lions are ashore at the time of the flight, 
observations will be made at the next nearest haulout site. The USCG 
will provide a report to NMFS within 120 days of the completion of the 
project. This report will provide dates and locations of operations, 
details of marine mammal sightings, including the number of pinipeds, 
by species and haulout location, that fled from the beach because of 
helicopter activities, the number returning subsequent to the 
disruption, and estimates of the amount and nature of all takes by 
harassment.

Consultation

    Under section 7 of the Endangered Species Act, NMFS has completed 
consultation on the issuance of an incidental harassment authorization. 
NMFS has determined that the proposed activity and the issuance of an 
incidental harassment authorization to the USCG to incidentally harass 
Pacific harbor seals, California sea lions, and Steller sea lions is 
not likely to adversely affect any listed species under the 
jurisdiction of NMFS except the Steller sea lion which while it may be 
adversely affected, would not result in jeopardizing the continued 
existence of the stock.

Conclusions

    NMFS has determined that the short-term impact of 4 days of 
helicopter flights over Tatoosh Island is expected to result at worst 
in a temporary reduction in utilization of the impacted haulout(s) as 
seals and sea lions leave the beach for the safety of the water. 
Helicopter activity is not expected to result in any reduction in the 
number of harbor seals, California sea lions, or Steller sea lions, and 
these species are expected to continue to occupy the same area. This 
behavioral change is expected to have no more than a negligible impact 
on the animals. Additionally, there will not be any impact on the 
habitat itself. Since NMFS is assured that the taking would not result 
in more than the incidental harassment (as defined by the MMPA 
Amendments of 1994) of small numbers of marine mammals, would have only 
a negligible impact on these stocks, would not have an unmitigable 
adverse impact on the availability of these stocks for subsistence 
uses, and would result in the least practicable impact on the stocks, 
NMFS has determined that the requirements of section 101(a)(5)(D) of 
the MMPA have been met and the authorization can be issued.

Authorization

    Accordingly, NMFS has issued an IHA to the USCG for possible 
harassment of small numbers of California sea lions, Pacific harbor 
seals, and Steller sea lions, provided the mitigation, monitoring, and 
reporting requirements described in the authorization are undertaken.

    Dated: August 17, 1998.
Patricia A. Montanio,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 98-22647 Filed 8-21-98; 8:45 am]
BILLING CODE 3510-22-F