[Federal Register Volume 64, Number 34 (Monday, February 22, 1999)]
[Notices]
[Pages 8548-8549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4292]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration
[I.D. 011999A]


Small Takes of Marine Mammals Incidental to Specified Activities; 
La Jolla Children's Pool Beach Management and Water Quality Project

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

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

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SUMMARY: NMFS has received a request from the City of San Diego's Parks 
and Recreation Department for authorization to take small numbers of 
Pacific harbor seals by harassment incidental to excavating and 
removing beach sand at the La Jolla Children's Pool, La Jolla, CA. 
Under the Marine Mammal Protection Act (MMPA), NMFS is requesting 
comments on its proposal to authorize the City of San Diego to 
incidentally take, by harassment, small numbers of seals in the above-
mentioned area.

DATES: Comments and information must be received on or before March 24, 
1999.

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

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, Office of 
Protected Resources at 301-713-2055, or Joe Cordaro, Southwest Regional 
Office at 562-980-4017.

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 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.

Summary of Request

    On December 28, 1998, NMFS received a request from the City of San 
Diego for authorization to take small numbers of Pacific harbor seals 
(Phoca vitulina) and possibly 1 to 2 California sea lions (Zalophus 
californianus) and northern elephant seals (Mirounga angustirostris) by 
harassment incidental to excavating and removing 3,000 yd3 
(2,295 m3) of beach sand at the La Jolla Children's Pool.
    The La Jolla Children's Pool was constructed in 1931 to provide a 
sheltered swimming area for children in La Jolla. Over time, the beach 
behind the breakwater has gradually widened as sand has accumulated in 
the sheltered pool. By 1998, the shoreline had advanced to near the end 
of the breakwater, at the mouth of the pool, leaving very little area 
for recreational swimming. The lack of a protected swimming area and 
the proximity to dangerous rip current conditions near the breakwater 
opening have created significant safety concerns.
    In addition to the restricted use and associated dangers due to 
sand accretion, recreational use has been further compromised by a 
population of harbor seals that regularly use the Children's Pool area 
as a haul-out area. Seal feces from the concentrated harbor seal 
population have resulted in fecal coliform bacteria counts that 
significantly exceed State water quality standards for bathing beaches 
and body

[[Page 8549]]

contact areas. DNA testing has confirmed the harbor seal population as 
the source of the bacterial contamination. As a result, the Children's 
Pool has been determined unsafe for human contact and has been closed 
to the public for all water contact since September 4, 1997. Moreover, 
the presence of the large seal population attracts large numbers of 
non-bathing observers to the beach area. This interaction has raised 
additional safety concerns for both humans and the seals.
    The La Jolla Children's Pool Beach Management and Water Quality 
Project proposes to restore a safe swimming area and acceptable water 
quality to the pool by reducing the beach width.
    Out of 4,200 yd3 (3,213 m3) of sand in the 
pool area, approximately 3,000 yd3 (2,295 m3) 
will be excavated and removed to narrow the beach. Approximately 20 
truckloads, or 100 yd3 (76.5 m3) per day, will be 
excavated from the Pool and transported to the disposal site. As a 
result, it is expected that the sand excavation activity will take up 
to 30 working days to complete. With a proposed completion date of May 
27, 1999, should the timeline require fewer days for completion, the 
Project proposes using larger trucks to complete the project. After 
sand removal, the beach profile will be slowly adjusted such that the 
pool will be deeper and wider at the outer side, and shallower and 
narrower at the landward side, providing children with a safe area to 
swim. The City of San Diego expects that the excavation will enlarge 
the area available for recreational swimming and provide a safe region 
for the public away from the dangerous rip currents, and, by reducing 
the area available for harbor seals, water quality levels are expected 
to return to former levels that were acceptable and safe for human 
contact.

Description of Marine Mammals Affected by the Activity

    General information on harbor seals and other marine mammal species 
found in Southern California waters can be found in Barlow et al. 
(1995, 1997). Please refer to those documents for information on these 
species.
    Based on the most recent harbor seal counts (23,302 in May/June 
1995; Hanan, 1996) and on Hanan's revised correction factor (1.3), the 
harbor seal population in California is estimated to number 30,293 
(Barlow et al., 1997). In California, there are approximately 400 to 
500 harbor seal haul-out sites, widely distributed along the mainland 
and at offshore islands, including intertidal sandbars, rocky shores, 
and beaches.
    In the Children's Pool area, researchers found that the monthly 
peak counts of harbor seals (based upon ground counts) present during 
the 2-year survey ranged from 11 to 142 (Yochem and Stewart, 1996). The 
range of other marine mammals present included 1 to 2 California sea 
lions and 1 northern elephant seal. While no seal births were observed 
in the Pool area during the study period, a few nursing pups were 
observed from April through June, with peak pup counts taking place in 
June.

Potential Effects on Marine Mammals

    The marine mammal most likely to be impacted by the sand removal 
project is the harbor seal. However, one or two California sea lions 
and/or northern elephant seals might also be affected. The type of 
taking anticipated will be incidental harassment caused by the noise of 
excavation equipment and truck traffic. It is anticipated that the 
seals may be disturbed and will be flushed from the beach upon 
initiation of activities on a daily basis, unless they become 
acclimated to the activity. The number of seals disturbed will vary 
depending, in part, on the tidal elevation at the nearby haul-out site 
at Seal Rock at the time of initiation of the activity. Because the 
project will work only during daylight hours, seals may haul out upon 
conclusion of the day's activities. Alternatively, due to the activity 
of heavy machinery required to move the sand off the beach, the harbor 
seals may avoid the site for the duration of the project and haulout on 
the nearby Seal Rock Marine Mammal Reserve or at alternate sites. Once 
the project has been completed, there will be a reduced area for 
hauling out and increased competition with recreational users which 
will likely reduce the number of harbor seals returning to the 
Children's Pool area to haul-out. These seals are expected to utilize 
Seal Rock or other haulouts in the area. No seals are expected to be 
seriously injured or killed by this activity.

Monitoring and Reporting

    One or more marine mammal biologists will conduct observations on 
harbor seal behavior before, during, and after the beach excavation 
project. Impacts will be observed and recorded as the sand removal 
begins and ends each work day. Upon completion of the project, data 
will be collected on the harbor seal population at Children's Pool 
daily for 2 weeks. Data collection format will follow that required for 
the 1994 to 1996 study conducted on the populations of harbor seals at 
Seal Rock Marine Mammal Reserve and Children's Pool by Hubbs-Sea World 
Research Institute. To assess any seasonal impact on the harbor seal 
population, quarterly observations will be recorded for a period of 1 
year following completion of the project (July and October 1999, and 
January and April, 2000). A draft report will be submitted to NMFS 
within 90 days of completion of the 2-week post-project monitoring, and 
an interim report will be submitted within 90 days after the April 2000 
observations. Both the draft and final reports will be subject to 
review and comment by NMFS. Any recommendations made by NMFS will need 
to be addressed in a final report prior to acceptance by NMFS.

Conclusions

    NMFS has preliminarily determined that the short-term impact of 
excavating and removing beach sand at the La Jolla Children's Pool will 
result, at worst, in a temporary modification in behavior by harbor 
seals and possibly one or two California sea lions and northern 
elephant seals. While these behavioral modifications, including the 
permanent vacating the haulout at Children's Pool, may be made by these 
species to avoid the resultant excavation noise and smaller beach area, 
this action is expected to have no more than a negligible impact on the 
species or stocks of these animals. In addition, no take by injury and/
or death is anticipated or authorized.

Proposed Authorization

    NMFS proposes to issue an incidental harassment authorization to 
the City of San Diego for possible harassment of small numbers of 
Pacific harbor seals, California sea lions, and northern elephant seals 
incidental to excavating and removing beach sand at the La Jolla 
Children's Pool, La Jolla, CA. NMFS has preliminarily determined that 
the proposed activities would result in the harassment of only small 
numbers of each of these species of marine mammals and would have no 
more than a negligible impact on these marine mammal stocks.

Information Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning this request (see ADDRESSES).

    Dated: February 17, 1999.
P. Michael Payne,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 99-4292 Filed 2-19-99; 8:45 am]
BILLING CODE 3510-22-F