[Federal Register Volume 66, Number 192 (Wednesday, October 3, 2001)]
[Notices]
[Pages 50416-50419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24761]



[[Page 50416]]

-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 090601B]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Building Demolition Activities at Mugu Lagoon, CA

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

ACTION: Notice of issuance of an incidental harassment authorization.

-----------------------------------------------------------------------

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 pinnipeds by 
harassment incidental to the demolition and removal of buildings 
located at the entrance of Mugu Lagoon in Point Mugu, CA has been 
issued to the Department of Navy, Naval Base Ventura County (NBVC).

DATES: Effective from September 26, 2001, until September 26, 2002.

ADDRESSES: The application and authorization are available by writing 
to Donna Wieting, Chief, Marine Mammal Conservation Division, Office of 
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910-3225, or by telephoning one of the contacts listed here.

FOR FURTHER INFORMATION CONTACT: Simona P. Roberts, (301) 713-2322, ext 
106 or Christina Fahy, (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 small numbers 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, notice of a proposed authorization is 
provided to the public for review.
    Permission may be granted if NMFS finds that the taking will have 
no more than 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.
    On April 10, 1996 (61 FR 15884), NMFS published an interim rule 
establishing, among other things, procedures for issuing incidental 
harassment authorizations (IHAs) under section 101 (a)(5)(D) of the 
MMPA for activities in Arctic waters. For additional information on the 
procedures to be followed for this authorization, please refer to that 
document.

Summary of Request

    On May 23, 2001, NMFS received an application from NBVC requesting 
an authorization for the harassment of small numbers of marine mammals 
incidental to the demolition and removal of approximately 12 buildings 
and associated infrastructures. The demolition site encompasses a total 
area of approximately 8 acres (3.2 hectares (ha)) at the entrance of 
Mugu Lagoon in Point Mugu, CA.
    There will be two phases to the demolition activities. No 
explosives will be used during any phase of the project and demolition 
crews will work only during daylight periods. During the first phase, 
one building requiring specialized procedures will be demolished and 
the resulting material removed from the site. In addition, the first 
phase will involve the excavation and removal of sand and soil around 
another building. This first phase will take approximately 5 weeks to 
complete. Construction equipment to be used during the first phase will 
include: a 2000-gallon water truck; a John Deere 710 4-wheel-drive 
backhoe with a 2000-pound hydraulic concrete breaker attachment; a 
front end loader with a 3-cubic-yard bucket; and, standard half-ton 
work pickup and dump trucks. The second phase of the project will be 
the demolition and removal of the remaining structures using standard 
construction procedures and equipment. This second phase may last 3 
weeks, but is more likely to be completed in 2 weeks. Specific 
construction equipment to be used during phase two will include: a 973 
loader; a 450 Hitachi excavator; a 320 loader; a Case 621 loader; a 710 
4-wheel-drive backhoe; a 545D skip loader; a 1000-gallon water truck; a 
dump truck; and, a Bobcat loader. A more detailed description of the 
work proposed for 2001 is contained in the application (The 
Environmental Company and LGL Ltd., 2001) which is available upon 
request (see ADDRESSES).

Comments and Responses

    On June 29, 2001 (66 FR 34618), NMFS published a notice of receipt 
and a 30-day public comment period was provided on the application and 
proposed authorization. A recommendation to issue the requested 
authorization was received from the Marine Mammal Commission (MMC). No 
other comments were received.

Description of Habitat and Marine Mammals Affected by the Activity

    Mugu Lagoon is one of the largest salt marshes in southern 
California, encompassing approximately 350 acres (142 ha) of water and 
tidal flats. The beaches around the Mugu Lagoon entrance are used year-
round by harbor seals (Phoca vitulina) for resting, molting, and 
breeding. The Navy reported a peak count of 361 adults in the Mugu 
Lagoon on June 6, 2000 (The Environmental Company and LGL Ltd., 2001). 
Two other pinniped species are known to occur infrequently in the area 
of the proposed activity during certain times of the year: northern 
elephant seals (Mirounga angustirostris) and California sea lions 
(Zalophus californianus). When present, these latter species haul out 
at the mouth of the lagoon and on Family Beach, located south of the 
demolition project area on the ocean side. Descriptions of the biology 
and local distribution of these species can be found in the application 
as well as other sources such as, Hanan (1996), Stewart and Yochem 
(1994, 1984), Forney et al. (2000), Koski et al. (1998), Barlow et al. 
(1993), Stewart and DeLong (1995), and Lowry et al. (1992). Please 
refer to those documents for information on these species.
    Isolated observations of cetaceans have occurred in the Mugu Lagoon 
area. Two gray whale (Eschrichtius robustus) strandings have been 
recorded (one 20 years ago and one in the early 1980s). There is also 
one recorded observation of a gray whale moving in and out of the 
entrance to Mugu Lagoon (T. Keeney, NBVC Point Mugu Environmental 
Division, pers. comm., 2001). Sightings of Dall's porpoise 
(Phocoenoides dalli), bottlenose dolphin (Tursiops truncatus), common 
dolphin (Delphinus delphisor D. capensis), and pilot whale 
(Globicephala macrorhynchus) have been made within 3 nautical miles 
(nm) (5.6 kilometers (km)) of shore in the vicinity of Point Mugu 
(Koski et al., 1998); however, none of these species would be expected 
to occur within the lagoon.

[[Page 50417]]

Potential Effects of Demolition Activities on Marine Mammals

    Acoustic and visual stimuli generated by the use of heavy equipment 
during the demolition and removal activities, as well as the increased 
presence of personnel, may cause short-term disturbance to pinnipeds 
hauled out closest to the work area. This disturbance from acoustic and 
visual stimuli is the principal means of marine mammal taking 
associated with these activities. Based on the measured sounds of 
construction equipment, such as might be used during the Point Mugu 
demolition project, sound levels from all equipment (except the 
concrete breaker to be used during the first phase) drops to below 100 
decibels, A-weighted (dBA) within 50 feet (ft)(15.2 meters (m)) of the 
source (CALTRANS, 2001).
    Pinnipeds sometimes show startle reactions when exposed to sudden 
brief sounds. An acoustic stimulus with sudden onset (such as a sonic 
boom) may be analogous to a ``looming'' visual stimulus (Hayes and 
Saif, 1967), which may elicit flight away from the source (Berrens et 
al., 1988). The onset of operations by a loud sound source, such as the 
concrete breaker during phase one, may elicit such a reaction. In 
addition, the movements of the large hydraulic arms of the backhoes or 
the Hitachi excavator may represent a ``looming'' visual stimulus to 
seals hauled out in close proximity. Seals exposed to such acoustic and 
visual stimuli may either exhibit a startle response or leave the haul-
out site.
    Harbor seals that haul out in Mugu Lagoon have clearly habituated 
to very loud airborne sounds at this location, as well as to the 
presence of humans and vehicle movement along the road that passes 
through the demolition area. For instance, biologists observed harbor 
seal haul-out sites in Mugu Lagoon during repeated overflights of a F-
14a Tomcat jet aircraft in full afterburner as it performed touch-and-
go maneuvers at nearby Mugu airfield. No more overt reactions than a 
momentary elevation of the hind flippers of a single juvenile seal were 
observed (The Environmental Company and LGL Ltd., 2001). Based on Air 
Force data, the received sound levels at the Mugu Lagoon haul-out sites 
under the jet's flight path could have reached a sound exposure level 
(SEL) of 117-121 dB re 20 micro-Pascal (Pa) during these maneuvers 
(from C. Malme, data in the USAF aircraft noise database). In areas 
where harbor seals are not exposed to regular aircraft noise or other 
acoustic stimuli, it should be noted that this type of reaction is not 
typical. For instance, Bowles and Stewart (1980) reported that harbor 
seals on San Miguel Island, CA reacted to low-altitude jet overflights 
with alert postures and often with rapid movement across the haul-out 
sites, especially when aircraft were visible.
    For the purposes of their application, NBVC assumed that when 
behavioral patterns of pinnipeds are disrupted by the demolition 
activities, they will be taken by harassment. In general, if the 
received level of the noise stimulus exceeds both the background 
(ambient) noise level and the auditory threshold of the animals, and 
especially if the stimulus is novel to them, then there may be a 
behavioral response. The probability and degree of response will also 
depend on the season, the group composition of the pinnipeds, and the 
type of activity in which they are engaged. The Navy considers minor 
and brief responses, such as momentary startle or alert reactions not 
to be ``takes'' by harassment (The Environmental Group and LGL Ltd., 
2001; see 64 FR 9925). However, when startle and alert reactions are 
accompanied by large-scale movements, such as stampedes into the water, 
this may have adverse effects on individuals and considered a ``take'' 
because of the potential for injury or death. As described here, harbor 
seals in the Mugu Lagoon are exposed to noise levels far greater than 
those expected during the demolition activities described in NBVC's 
application, and there is no evidence that noise-induced injury or 
deaths have occurred. The effects of the demolition activities are 
expected to be limited to short-term and localized behavioral changes 
(The Environmental Group and LGL Ltd., 2001).
    For a further discussion on the anticipated effects of the planned 
demolition activities on marine mammals in the area and their food 
sources, please refer to the application (The Environmental Company and 
LGL Ltd., 2001). Information in the application and referenced sources 
is preliminarily adopted by NMFS as the best information available on 
this subject.

Numbers of Marine Mammals Expected to Be Taken

    NBVC estimates that the following numbers of marine mammals may be 
subject to Level B harassment, as defined in 50 CFR 216.3:

------------------------------------------------------------------------
                                                              Potential
                          Species                             Harassment
                                                              Takes 2001
------------------------------------------------------------------------
Harbor Seals*                                                        288
Northern Elephant Seal*                                                8
California Sea Lion*                                                  12
------------------------------------------------------------------------
* Some individual seals may be harassed more than once

Effects of Demolition Activities on Marine Mammal Habitat

    NBVC anticipates no loss or modification to the habitat used by 
marine mammal populations that haul out within the Mugu Lagoon. 
Demolition activities will occur on shore above the highest tide mark, 
and the demolition contractor will ensure that building refuse will not 
enter the waters of the lagoon (New World Technology, 2001). The tidal 
patterns in the lagoon and structure of the nearby sandy haul-out areas 
will not be altered by these shore-based demolition activities.
    The pinnipeds that may be present in Mugu Lagoon leave the lagoon 
area to feed in the open sea (T. Keeney, NBVC Point Mugu Environmental 
Division, pers. comm., 1998); therefore, it is not expected that the 
demolition activities will have any impact on the food or feeding 
success of these marine mammals.

Effects of Demolition Activities on Subsistence Needs

    There are no subsistence uses for these pinniped species in 
California waters, and thus there are no anticipated effects on 
subsistence needs.

Mitigation

    No pinniped mortality and no significant long-term effect on the 
stocks of pinnipeds hauled out in the Mugu Lagoon are expected based on 
the relatively low levels of sound generated by the demolition 
equipment (i.e., 100 dBA within 50 ft (15.2 m) from the source) and the 
relatively short time period over which the project will take place 
(approximately 8 weeks). However, NBVC does expect that the demolition 
activities may cause disturbance reactions by some of the pinnipeds on 
the beaches. To reduce the potential for disturbance from visual and 
acoustic stimuli associated with the demolition project, NBVC will 
undertake a variety of mitigation measures. In addition to these 
measures to be taken by NBVC, the construction contractor has developed 
detailed work plans for the project, which emphasize that special 
consideration is required to minimize disturbances to the resident 
harbor seal population (New World Technology, 2001). In addition to not 
using explosives and only operating

[[Page 50418]]

during daylight hours, NBVC will adopt the following mitigation 
measures:
    (1) Prior to each day of demolition or removal activities, NBVC 
Point Mugu Environmental Division personnel will inspect the work site 
to ensure compliance with the construction contractor's work plan, and 
to assess the number and types of marine mammals that are occupying the 
lagoon. Depending on results of initial observations and subsequent 
planned activities, the NBVC personnel will decide each day whether 
marine mammal monitoring for the entire day is needed (see Monitoring 
section). Work will be suspended or conducted in another area in the 
event that a monitoring biologist or a member of the demolition crew 
sights a marine mammal hauled out in an area where there is a risk that 
the animal may come into physical contact with construction machinery 
or personnel.
    (2) The demolition contractor will ensure that work areas are 
caution taped as a barricade against inadvertent entry of unauthorized 
personnel where physical barriers are not already present. Before start 
of the activities, demolition personnel will be advised of all marine 
mammal mitigation measures.
    (3) Work outside of the fenced boundary on the lagoon side of the 
site will be minimized to the extent possible. Work within 100 feet 
(30.48 meters) of the lagoon will be done manually where possible (New 
World Technology, 2001).
    (4) During excavations, tarps will be carefully placed over areas 
in such a way as to reduce ``flapping'' during installation by 
unfolding the tarps in sections as they are installed. The edges of the 
tarps will be held down and secured with sandbags and/or tent stakes to 
prevent movement of the tarp during windy conditions.
    (5) To reduce sound levels in proximity to harbor seal haul-out 
sites, concrete slabs that form the bases of some buildings and the 
pools will be sectioned using concrete cutting saws, rather than the 
hydraulic concrete breaker, where possible.

Monitoring

    As part of its application, NBVC provided a proposed monitoring 
plan for assessing impacts to marine mammals from demolition activities 
in Mugu Lagoon. This monitoring would be entirely land-based and is 
designed to determine if there are disturbance reactions, to determine 
the area over which reactions occur, and to characterize harbor seal 
reactions to demolition sounds.
    The monitoring program will be conducted by NMFS-approved and 
biologically-trained marine mammal monitors via land-based visual 
observations. NBVC must conduct a minimum of twice-daily monitoring 
efforts for each day of the two phases of demolition, and conduct all-
day monitoring when marine mammals are present or when new procedures 
or equipment are employed relative to previous project activities. 
Marine mammal monitors are required to record a variety of information 
including: (1) date and time, (2) weather, (3) tide state, (4) 
composition and locations of the haul-out groups of pinnipeds within 
the lagoon, (5) marine mammal behavior patterns observed before, 
during, and after the activities, (6) horizontal visibility (estimated 
by determining what the furthest visible object is relative to the 
interacting seals using known positions of local objects and accounting 
for obstructing terrain), and (7) occurrence, or planned occurrence, of 
any other military aircraft activity or other anthropogenic activities 
in or around the lagoon.
    Through direct visual observation, the number of seals hauled out 
and haul-out locations will be documented during the demolition. This 
monitoring plan also provides data required to characterize the extent 
and nature of marine mammal takings.

Reporting

    NBVC will provide an initial report to NMFS within 90 days after 
the demolition and removal activities cease. This report will provide 
dates and locations of demolition activities, details of seal 
behavioral observations, and estimates of the amount and nature of all 
takes of seals by harassment or in other ways. In the unanticipated 
event that any cases of pinniped mortality are judged to result from 
demolition activities, this will be reported to NMFS immediately.

Endangered Species Act Consultation

    NBVC's activities will not affect any listed species. Therefore, 
NMFS has determined that a section 7 consultation under the Endangered 
Species Act is not required at this time.

National Environmental Policy Act (NEPA)

    The Department of the Navy, following Council on Environmental 
Quality regulations (40 CFR 1500), has found that demolition and 
disposal involving buildings or structures neither on, nor eligible 
for, listing on the National Register of Historic Places and requiring 
removal of hazardous materials, are categorically excluded from further 
documentation under NEPA (32 CFR 775, Department of Navy Procedures for 
Implementing the National Environmental Policy Act). NBVC is preparing 
a Record of Categorical Exclusion for all phases of this demolition 
project.
    In accordance with section 6.01 of NOAA Administrative Order 216-6 
(Environmental Review Procedures for Implementing the National 
Environmental Policy Act, May 20, 1999), NMFS has analyzed both the 
context and intensity of this action and determined based on previous 
programmatic environmental reviews contained in NBVC's request for an 
IHA and the Draft Environmental Impact Statement/Overseas Environmental 
Impact Statement for the Point Mugu Sea Range (Department of Navy Naval 
Air Warfare Center Weapons Division, July 2000) that the issuance of 
this IHA to NBVC by NMFS will not individually or cumulatively result 
in a significant impact on the quality of the human environment as 
defined in 40 CFR 1508.27 and is therefore categorically excluded from 
further NEPA analysis. In addition to the required NEPA analysis for 
categorical exclusion, NMFS' rulemaking for the issuance of IHAs (61 FR 
15884; April 10, 1996) stated that for issuance of an IHA, NMFS must 
first determine that the taking (by harassment) would not result in any 
serious injury or death to a marine mammal, would have no more than a 
negligible impact on marine mammals and their habitat, and would not 
have an unmitigable adverse impact on the availability of the species 
or stock(s) for subsistence uses. Therefore, NMFS' decision-making 
process for IHA issuance or denial independently and separately 
analyzes factors similar to those suggested under section 6.01 of NOAA 
Administrative Order 216-6 for determining the significance of agency 
actions for the purposes of NEPA.

Determinations

    Based on the evidence provided in the application and this 
document, and taking into consideration comments received on the 
application and proposed authorization notice, NMFS has determined that 
the effects of the planned demolition activities will have no more than 
a negligible impact on pinniped species and stocks. NMFS is assured 
that the short-term impact of conducting demolition and removal 
activities at the entrance of Mugu Lagoon in Point Mugu, California 
will result, at worst, in a temporary modification in behavior by 
certain species of pinnipeds. While behavioral

[[Page 50419]]

modifications may be made by these species as a result of demolition 
and removal activities, previous observations of the responses of 
pinnipeds to loud military overflights and regular human activities 
near the Mugu Lagoon haul-out sites have not shown injury, mortality, 
or extended disturbance.
    Since the number of potential harassment takings of harbor seals, 
northern elephant seals, and California sea lions is estimated to be 
small, no take by injury and/or death is anticipated and will be 
avoided through the incorporation of the mitigation measures mentioned 
in this document and required under the IHA, and the activities will 
not have an unmitigable adverse impact on the availability of these 
pinniped stocks for subsistence uses, 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

    NMFS has issued an IHA to NBVC for demolition and building emoval 
activities to take place in Mugu Lagoon, CA during a 1-year period 
provided the mitigation, monitoring, and reporting requirements 
described in this document and the IHA are undertaken.

    Dated: September 26, 2001.
Wanda L. Cain
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service..
[FR Doc. 01-24761 Filed 10-2-01; 8:45 am]
BILLING CODE 3510-22-S