[Federal Register Volume 63, Number 251 (Thursday, December 31, 1998)]
[Notices]
[Pages 72285-72287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-34710]



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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 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) has been issued to the Washington State 
Department of Corrections (WDOC) to take small numbers of harbor seals 
by harassment incidental to the nonexplosive demolition and 
construction of the Still Harbor Dock Facility on McNeil Island in 
southern Puget Sound for a period of 1 year.

DATES: This authorization is effective from January 1, 1999, through 
December 31, 1999.

ADDRESSES: The application, authorization, and a 1994 environmental 
assessment (EA) are available by writing to the following offices: 
Marine Mammal Division, Office of Protected Resources, NMFS, 1315 East-
West Highway, Silver Spring, MD 20910-3225, or the Northwest Region, 
NMFS, Bldg 1, 7600 Sand Point Way, Seattle, WA 98115, or by telephoning 
one of the contacts listed here.
    The Washington State Final Environmental Impact Statement (FEIS) 
and other documents are available for review during regular business 
hours at these same offices.

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

    Subsections 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 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 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.

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, NMFS issued an IHA to the WDOC under 
subsection 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 1 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.

Comments and Responses

    A notice of receipt of the application and proposed authorization 
was published on October 29, 1998 (63 FR 58012), and a 30-day public 
comment period was provided on the application and proposed 
authorization. During the 30-day comment period, comments were received 
from the Marine Mammal Commission (MMC).
     Comment: The MMC recommends, as it did in 1994, that the proposed 
incidental harassment authorization not be issued until the 
uncertainties and details of the monitoring program have been worked 
out and NMFS is able to

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reasonably conclude that the monitoring program is appropriate to 
detect any possible harmful effects on the local harbor seal 
population.
     Response: NMFS concurs that monitoring should be carried out (as 
required by the MMPA). NMFS believes that the level and extent of 
monitoring required for ``harassment'' takings must be weighed against 
the anticipated level of impact. For this type of activity, NMFS 
believes that observations prior to, during, and subsequent to any 
noise disturbance activities will provide sufficient information on the 
impact of disturbance. Also, since the Gertrude Island harbor seal 
haul-out is the largest in Puget Sound and has been studied by both 
Washington Department of Fish and Wildlife (WDFW) and NMFS, sufficient 
baseline data have already been recorded. To ensure that observations 
take place during demolition work, a condition of the IHA in 1994, and 
again this year, is for WDOC to notify both NMFS and the WDFW at least 
48 hours prior to commencement of work in order to allow observations 
of harbor seals prior to work beginning. To ensure that observations 
take place during demolition work, if NMFS and/or WDFW biologists are 
not available during demolition, the WDOC is required to contract with 
trained marine mammal biologists for behavioral observations to be made 
during any work on the McNeil Island Dock. The IHA requires a report on 
these observations be provided within 90 days of completion of work.

Harbor Seals

    A description of the harbor seals found in Puget Sound and on 
Gertrude Island can be found in the notice of proposed authorization 
and need not be repeated here.

Expected Impact to Harbor Seals

    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 
haul-out 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 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 research projects 
on harbor seals for a number of years. Research efforts by NMFS and 
WDFW include a radio tag study to learn about feeding behavior of the 
seals. The IHA requires WDOC to notify NMFS, and the WDFW prior to work 
in order to coordinate this research.
    While monitoring impacts from construction is planned to be 
conducted by WDFW, the WDOC may contract with a private contractor to 
monitor activities if WDFW biologists are unavailable.

Conclusions

    NMFS has determined that the short-term impact of taking small 
numbers of harbor seals by harassment incidental to the demolition and 
construction of the Dock Facility on McNeil Island is expected to 
result at worst in a temporary reduction in utilization of the impacted 
haulout(s) as seals leave the beach for the safety of the water. The 
activity is not expected to result in any reduction in the number of 
harbor seals, and these animals 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 subsection 
101(a)(5)(D) of the MMPA have been met and the authorization can be 
issued.

Authorization

    Accordingly, on the date of this notice, NMFS issued an incidental 
harassment authorization to the WDOC for 1 year for the demolition and 
reconstruction 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 determined that 
the demolition of the Dock Facility would result in the harassment 
taking of only

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a small number of harbor seals, would have a negligible impact on the 
harbor seal stock, and would not have an adverse impact on the 
availability of this stock for subsistence uses.

    Dated: December 23, 1998.
Michael Payne,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 98-34710 Filed 12-30-98; 8:45 am]
BILLING CODE 3510-22-F