[Federal Register Volume 66, Number 187 (Wednesday, September 26, 2001)]
[Notices]
[Pages 49165-49167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24116]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 071101A]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Seismic Retrofit of the Richmond-San Rafael Bridge, San Francisco Bay, 
CA

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 California 
Department of Transportation (CALTRANS) to take small numbers of 
Pacific harbor seals and possibly California sea lions, by harassment, 
incidental to seismic retrofit construction of the Richmond-San Rafael 
Bridge (the Bridge), San Francisco Bay, (the Bay) CA.

DATES: This authorization is effective from September 19, 2001, through 
September 18, 2002.

ADDRESSES: A copy of the application may be obtained by writing to 
Donna Wieting, Chief, Marine Mammal Conservation 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 R. Hollingshead, Office of 
Protected Resources, NMFS, (301) 713-2055, ext 128, or Christina Fahy, 
Southwest Regional Office, NMFS, (562) 980-4023.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct 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 and comment.
    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.''
    Section 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 defines ``harassment'' as:

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

    Section 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 June 8, 2001, NMFS received a letter from CALTRANS, requesting 
reauthorization of an IHA that was first issued to it on December 16, 
1997 (62 FR 6704, December 23, 1997), and renewed on January 8, 2000 
(65 FR 2375, January 14, 2000), with an effective date for the IHA 
beginning on September 1, 2000, and expired on August 31, 2001. The 
renewed authorization would be for the harassment of small numbers of 
Pacific harbor seals (Phoca vitulina) and possibly California sea lions 
(Zalophus

[[Page 49166]]

californianus), incidental to seismic retrofit construction of the 
Bridge.
    The Bridge is being seismically retrofitted to withstand a future 
severe earthquake. Construction is scheduled to extend until the year 
2005. A detailed description of the work planned is contained in the 
Final Natural Environmental Study/Biological Assessment for the 
Richmond-San Rafael Bridge Seismic Retrofit Project (CALTRANS, 1996). 
Among other things, seismic retrofit work will include excavation 
around pier bases, hydro-jet cleaning, installation of steel casings 
around the piers with a crane, installation of micro-piles, and 
installation of precast concrete jackets. Foundation construction will 
require approximately 2 months per pier, with construction occurring on 
more than one pier at a time. In addition to pier retrofit, 
superstructure construction and tower retrofit work will also be 
carried out. Because seismic retrofit construction between piers 52 and 
57 has the potential to disturb harbor seals hauled out on Castro 
Rocks, an IHA is warranted. The duration for the seismic retrofit of 
foundation and towers on piers 52 through 57, which has not taken place 
as of this date, will take approximately 7 to 8 months to complete.

Comments and Responses

    A notice of receipt of the application and proposed authorization 
was published on July 23, 2001 (66 FR 38258), and a 30-day public 
comment period was provided on the application and proposed 
authorization. Comments were received only from the Marine Mammal 
Commission (MMC). The MMC concurs with NMFS' preliminary determination 
that the short-term impact of conducting the proposed seismic retrofit 
construction activities will result, at most, in a temporary 
modification in behavior by harbor seals, and, potentially, California 
sea lions. The MMC also concurs that the monitoring and mitigation 
measures proposed by CALTRANS appear to be adequate to ensure that the 
planned activities will not result in the mortality or serious injury 
of any marine mammal. As a result, the MMC recommends that the 
requested IHA be issued, provided NMFS is satisfied that the monitoring 
and mitigation programs will be carried out as described in the 
application.

Description of Habitat and Marine Mammals Affected by the Activity

    A description of the affected San Francisco Bay ecosystem and its 
associated marine mammals can be found in the proposed authorization 
document (July 23, 2001, 66 FR 38258), and in the references provided 
therein. Additional information can be found in the earlier notice of 
IHA issuance (62 FR 67045, December 23, 1997). Please refer to these 
documents for further information.

Potential Effects on Marine Mammals

    The impact to the harbor seals and California sea lions is expected 
to be disturbance by the presence of workers, construction noise, and 
construction vessel traffic. Disturbance from these activities is 
expected to have a short-term negligible impact to a small number of 
harbor seals and sea lions. These disturbances will be reduced to the 
lowest level practicable by implementation of the proposed work 
restrictions and mitigation measures (see Mitigation).
    During the work period, the incidental harassment of harbor seals 
and, on rare occasions, California sea lions is expected to occur on a 
daily basis upon initiation of the retrofit work. If harbor seals no 
longer perceive construction noise and activity as being threatening, 
they are likely to resume their regular haulout behavior. The number of 
seals disturbed will vary daily depending upon tidal elevations. It is 
expected that disturbance to harbor seals during peak periods of 
abundance will not occur since construction activities will not take 
place within the restricted work area during the peak period (see 
Mitigation).
    Whether California sea lions will react to construction noise and 
move away from the rocks during construction activities is unknown. Sea 
lions are generally thought to be more tolerant of human activities 
than harbor seals and are, therefore, less likely to be affected.

Potential Effects on Habitat

    Short-term impacts of the activities are expected to result in a 
temporary reduction in utilization of the Castro Rocks haul-out site 
while work is in progress or until seals acclimate to the disturbance. 
This will not likely result in any permanent reduction in the number of 
seals at Castro Rocks. The abandonment of Castro Rocks as a harbor seal 
haul-out and rookery is not anticipated since existing traffic noise 
from the Bridge, commercial activities at the Chevron Long Wharf used 
for off-loading crude oil, and considerable recreational boating and 
commercial shipping that currently occur within the area have not 
caused long-term abandonment. In addition, mitigation measures and 
proposed work restrictions are designed to preclude abandonment. 
Therefore, as described in detail in CALTRANS (1996), other than the 
potential short-term abandonment by harbor seals of part or all of 
Castro Rocks during retrofit construction, no impact on the habitat or 
food sources of marine mammals are likely from this construction 
project.

Mitigation

    Several mitigation measures to reduce the potential for general 
noise will be implemented by CALTRANS as part of their activity. 
General restrictions include: no piles will be driven (i.e., no 
repetitive pounding of piles) on the Bridge between 9 p.m. and 7 a.m. 
with the exception of the Concrete Trestle Section; a noise limit of 86 
dBA at 50 ft (15 m) between 9 p.m. and 7 a.m. for construction; and a 
limitation on construction noise levels for 24 hrs/day in the vicinity 
of Castro Rocks during the pupping/molting restriction period (February 
15 through July 31).
    To minimize potential harassment of marine mammals, NMFS is 
requiring CALTRANS to comply with the following mitigation measures: 
(1) Restriction on work in the water south of the Bridge center line 
and retrofit work on the Bridge substructure, towers, superstructure, 
piers, and pilings from piers 52 through 57 from February 15 through 
July 31 ; (2) no watercraft will be deployed by CALTRANS employees or 
contractors, during the year within the exclusion zone located between 
piers 52 and 57, except for when construction equipment is required for 
seismic retrofitting of piers 52 through 57; and (3) minimize vessel 
traffic to the greatest extent practicable in the exclusion zone when 
conducting construction activities between piers 52 and 57. The 
boundary of the exclusion zone is rectangular in shape (1700 ft (518 m) 
by 800 ft (244 m)) and completely encloses Castro Rocks and piers 52 
through 57, inclusive. The northern boundary of the exclusion zone will 
be located 300 ft (91 m) from the most northern tip of Castro Rocks, 
and the southern boundary will be located 300 ft (91 m) from the most 
southern tip of Castro Rocks. The eastern boundary will be located 300 
ft (91 m) from the most eastern tip of Castro Rocks, and the western 
boundary will be located 300 ft (91 m) from the most western tip of 
Castro Rocks. This exclusion zone will be restricted as a controlled 
access area and will be marked off with buoys and warning signs for the 
entire year.

Monitoring

    NMFS will require CALTRANS to monitor the impact of seismic 
retrofit

[[Page 49167]]

construction activities on harbor seals at Castro Rocks. Monitoring 
will be conducted by one or more NMFS-approved monitors. CALTRANS is to 
monitor at least one additional harbor seal haul-out within San 
Francisco Bay to evaluate whether harbor seals use alternative haulout 
areas as a result of seismic retrofit disturbance at Castro Rocks.
    The monitoring protocol will be divided into the Work Period Phase 
(August 1 through February 14) and the Closure Period Phase (February 
15 through July 31). During the Work Period Phase and Closure Period 
Phase, the monitor(s) will conduct observations of seal behavior at 
least 3 days/week for approximately one tidal cycle each day at Castro 
Rocks. The following data will be recorded: (1) Number of seals and sea 
lions on site; (2) date; (3) time; (4) tidal height; (5) number of 
adults, subadults, and pups; (6) number of individuals with red pelage; 
(7) number of females and males; (8) number of molting seals; and (9) 
details of any observed disturbances. Concurrently, the monitor(s) will 
record general construction activity, location, duration, and noise 
levels. At least 2 nights/week, the monitor will conduct a harbor seal 
census after midnight at Castro Rocks. In addition, during the Work 
Period Phase and prior to any construction between piers 52 and 57, 
inclusive, the monitor(s) will conduct baseline observations of seal 
behavior at Castro Rocks and at the alternative site(s) once a day for 
a period of 5 consecutive days immediately before the initiation of 
construction in the area to establish pre-construction behavioral 
patterns. During the Work Period and Closure Period Phases, the 
monitor(s) will conduct observations of seal behavior, and collect 
appropriate data, at the alternative Bay harbor seal haul-out at least 
3 days/week (Work Period) and 2 days/week (Closure Period), during a 
low tide.
    In addition, NMFS will require that immediately following the 
completion of the seismic retrofit construction of the Bridge, the 
monitor(s) will conduct observations of seal behavior at Castro Rocks 
at least 5 days/week for approximately 1 tidal cycle (high tide to high 
tide) each day and for 1 week/month during the months of April, July, 
October, and January. At least 2 nights/week during this same period, 
the monitor will conduct an additional harbor seal census after 
midnight.

Reporting

    CALTRANS will provide weekly reports to the Southwest Regional 
Administrator (Regional Administrator), NMFS, including a summary of 
the previous week's monitoring activities and an estimate of the number 
of harbor seals that may have been disturbed as a result of seismic 
retrofit construction activities. These reports will provide dates, 
time, tidal height, maximum number of harbor seals ashore, number of 
adults, sub-adults and pups, number of females/males, number of harbor 
seals with a red pelage, and any observed disturbances. A description 
of retrofit activities at the time of observation and any sound 
pressure levels measurements made at the haulout will also be provided. 
A draft interim report must be submitted to NMFS by April 30, 2002.
    Because seismic retrofit activities are expected to continue beyond 
the date of expiration of this IHA (presumably under a new IHA), a 
draft final report must be submitted to the Regional Administrator 
within 90 days after the expiration of this IHA. A final report must be 
submitted to the Regional Administrator within 30 days after receiving 
comments from the Regional Administrator on the draft final report. If 
no comments are received from NMFS, the draft final report will be 
considered to be the final report.
    CALTRANS will provide NMFS with a follow-up report on the post-
construction monitoring activities within 18 months of project 
completion in order to evaluate whether haul-out patterns are similar 
to the pre-retrofit haul-out patterns at Castro Rocks.

National Environmental Policy Act

    NMFS prepared an Environmental Assessment (EA) in 1997 that 
concluded that the impacts of CALTRANS' seismic retrofit construction 
of the Bridge will not have a significant impact on the human 
environment. A copy of that EA, which includes the Finding of No 
Significant Impact, is available upon request (see ADDRESSES).

Conclusions

    NMFS has determined that the short-term impact of the seismic 
retrofit construction of the Bridge, as described in this document, 
should result, at worst, in the temporary modification in behavior by 
harbor seals and, possibly, by some California sea lions. While 
behavioral modifications, including temporarily vacating the haulout, 
may be made by these species to avoid the resultant visual and acoustic 
disturbance, this action is expected to have a negligible impact on the 
animals. In addition, no take by injury and/or death is anticipated, 
and harassment takes will be at the lowest level practicable due to 
incorporation of the mitigation measures mentioned previously in this 
document.

Authorization

    For the above reasons, NMFS has issued an IHA for a 1-year period 
effective September 19, 2001, for the incidental harassment of harbor 
seals and California sea lions by the seismic retrofit of the Richmond-
San Rafael Bridge, San Francisco Bay, CA, provided the above mentioned 
mitigation, monitoring and reporting requirements are incorporated.

    Dated: September 19, 2001.
Wanda Cain,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 01-24116 Filed 9-25-01; 8:45 am]
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