[Federal Register Volume 63, Number 209 (Thursday, October 29, 1998)]
[Notices]
[Pages 58012-58014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29021]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration
[I.D. 102198A]


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

[[Page 58013]]

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 November 
30, 1998.

ADDRESSES: Comments on the application should be addressed to Michael 
Payne, Chief, Marine Mammal Division, Office of Protected Resources, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3225. A copy of 
the application, and a 1994 environmental assessment, which includes a 
list of references used in this document, may be obtained by writing to 
this address or by telephoning one of the contacts listed in FOR 
FURTHER INFORMATION CONTACT section.
    The Washington State Final Environmental Impact Statement (FEIS) 
and other documents are available for review during regular business 
hours in the following offices: Office of Protected Resources, NMFS, Rm 
13600, 1315 East-West Highway, Silver Spring, MD 20910, and Northwest 
Region, NMFS, Bldg 1, 7600 Sand Point Way, Seattle, WA 98115.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of 
Protected Resources, NMFS, (301) 713-2055, or Brent Norberg, Northwest 
Regional Office, NMFS, (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) or 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 taking 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 Marine Mammal Protection Act 
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.

Background of Request

    On September 18, 1998, NMFS received an application from the WDOC 
requesting an authorization for the possible harassment of small 
numbers of harbor seals incidental to work involved in the removal and 
replacement of the Still Harbor Dock Facility (Dock Facility), a foul 
weather landing facility for the McNeil Island Corrections Center, 
McNeil Island, WA. (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). 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.
    On January 23, 1995, the WDOC was issued an Incidental Harassment 
Authorization (IHA) under section 101(a)(5)(D) of the MMPA for this 
project (see 60 FR 7046, February 6, 1995). However, removal of the 
Dock Facility was not completed; the IHA expired one year after 
authorization; and a renewal was not requested since that time.
    The renovation will include demolition of the existing facility; 
construction of a new pile-supported concrete access trestle 
approximately 350 ft (107 m) long by 10 ft (3.0 m) wide, a new 50 ft 
(15.2 m) long by 5 ft (1.5 m) wide aluminum gangway, seven new 10 ft 
(3.0 m) wide and 50 ft (15.2 m) long and one new 14 ft (4.3 m) wide and 
60 ft (18.3 m) long concrete floats; and 60 steel pipe and prestressed 
concrete piles. All new structures will be constructed within the 
footprint of the existing facility. The new dock will be significantly 
smaller than planned in 1994 (8,000 ft2 v. 20,000 
ft2). Additional information on the dock facility and the 
Corrections Center in general can be obtained by referring to the FEIS 
published by the WDOC in 1989 in compliance with the State 
Environmental Policy Act of 1971 (Chapter 43.21C, Revised Code of 
Washington). This document and the 1998 Addendum are available for 
viewing (see ADDRESSES).
    In an effort to minimize noise from these activities, no explosives 
will be used for demolition. 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 one season's specified work window from December 1998 or January 
1999, through March 15, or April 1, 1999. Above-water work is scheduled 
to continue through to the end of August 1999.

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 Dock Facility 
(although a few California sea lions may also be harassed). 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 (305 m) from the

[[Page 58014]]

Dock Facility. The type of taking anticipated will be incidental 
harassment caused by the noise of demolition work, pile driving, and 
construction. It is anticipated that the seals may be disturbed upon 
initiation of 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.
    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.). 
Boveng (1988) and NMFS (1991) estimated the minimum harbor seal 
population for the state's inland waters to be 6,062. More recently, 
Barlow et al. (1997) estimate the inland population at 16,253, giving 
it a minimum population size estimate of 15,349. South Puget Sound pup 
counts are presently increasing at an annual rate of 15.3% 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. Based on data from 
the Washington Department of Fish and Wildlife (WDFW) and NMFS on 
Gertrude Island, total seal counts between 1988 and 1993 indicate the 
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 vary 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 to 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).
    The impact to the harbor seals would be disturbance by noise which 
is anticipated to result in a negligible short-term impact to a small 
number of harbor seals. When harbor seals are frightened by noise or by 
the approach of a boat, plane, human, or other potential predator, the 
seals 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 (Johnson, 1977; 
Skidmore and Babson, 1981). These short term disturbances and site 
reoccupation were confirmed by observations conducted during the first 
phase of the project (WDOC, 1997). 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 
when the use of the dock facility serving as a foul weather moorage for 
WDOC passenger ferries, barges, tugboats, and patrol boats increases.
    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 here) under an MMPA IHA are expected to reduce any 
impacts to a negligible level.

Mitigation

    Efforts to ensure negligible impact of the dock renovation project 
on harbor seals identified by the WDOC and proposed for inclusion in 
the IHA include:
    1. A December 1-July 15 (or whenever newborn pups are first 
observed on Gertrude Island) work schedule for those activities that 
are predicted to disturb harbor seals in order to avoid adversely 
affecting harbor seals during the pupping and nursing season (July 15 
to October 15);
    2. A 1,000-ft (305 m) 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 marked 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 under 
discussion; alternatively, WDOC may contract with a private contractor 
to monitor activities. In addition, NMFS proposes to require WDOC to 
notify NMFS and the WDFW prior to work in order to coordinate the 
monitoring of potential disturbances to seals.

Proposed Authorization

    NMFS proposes to issue an incidental harassment authorization for 1 
year for the demolition of the collapsed portion of the 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 Dock Facility would result in the harassment taking of only a small 
number of harbor seals and possibly California sea lions, would have a 
negligible impact on the harbor seal and California sea lion stocks and 
would not have an adverse impact on the availability of these stocks 
for subsistence uses.

Information Solicited

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

    Dated: October 23, 1998.
Hilda Diaz-Soltero,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 98-29021 Filed 10-28-98; 8:45 am]
BILLING CODE 3510-22-F