[Federal Register Volume 66, Number 237 (Monday, December 10, 2001)]
[Notices]
[Pages 63680-63683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30465]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 112101B]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Repairs at the Carpinteria Oil and Gas Processing Facility, 
Carpinteria, 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) to take small numbers of Pacific harbor 
seals (Phoca vitulina richardsi) by harassment incidental to repairs at 
the Carpinteria Oil and Gas Processing Facility in Carpinteria, CA., 
has been issued to Venoco, Inc.

DATES: Effective from November 28, 2001, until November 28, 2002.

ADDRESSES: The application, Wildlife Protection Plans, Project 
Execution Plans, and IHA 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.

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.
    Authorization may be granted if NMFS finds, based on the best 
available scientific evidence, that the taking will have a negligible 
impact on the marine mammal species or stock(s). Negligible impact is 
defined in regulation (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''.

Summary of Request

    On June 17, 2001, NMFS received an application from Venoco, Inc., 
the owner and operator of the Carpinteria Oil and Gas Processing 
Facility in Carpinteria, CA, requesting an IHA for the take of small 
numbers of Pacific harbor seals incidental to repair of gas pipeline 
supports and pier pilings at Casitas Pier.
    On October 24, 2001, Venoco notified NMFS that the project had been 
modified such that only repairs to the gas pipeline supports and not 
the pier were to be made. In addition, Venoco revised its original 
Project Execution Plan and Wildlife Protection Plan to better address 
the issue of acoustic harassment. A detailed description of the work 
proposed for 2001 is contained in the revised Project Execution Plan, 
which are available upon request (see ADDRESSES).
    Venoco plans to complete all repair activities in a three-week 
period. However, to account for potential weather and logistical delays 
and reduce further paperwork, the IHA will be issued for a full 1-year 
period (November 2001-November 2002).

Comments and Responses

    On September 12, 2001 (66 FR 47453), NMFS published a notice of 
receipt and a 30-day public comment period was provided on the 
application and proposed authorization. Comments were received from the 
Santa Barbara County Energy Division, the California Coastal 
Commission, the City of Carpinteria, and a private citizen.

Cumulative Impact Concerns

    Comment 1: The California Coastal Commission recommended that the 
authorization address the potential for cumulative impacts from chronic 
disturbances to the Pacific harbor seal rookery located near the gas 
pipeline and the possibility that additional disturbances such as the 
proposed activity could cause the seal rookery to permanently abandon 
this location.
    Response: Based on previous observations conducted in the vicinity 
of the gas pipeline and pier, as well as daily observations made by the 
Carpinteria Seal Watch, there is no evidence that chronic disturbances, 
such as people walking along the beach, are negatively impacting the 
Pacific harbor seals hauling out on the beach over the long-term 
(Seagars, 1986; Howorth,1995). From information provided by Howorth 
(1995), the most negative disturbance to date, resulting in haul-out 
abandonment, has been not from direct disturbance by humans but rather 
from disturbance and pup injury and predation by a coyote. Based on 
these previous documented observations at Carpinteria and nearby haul-
out sites, there is very low probability that the harbor seals will 
completely abandon the Carpinteria haul-out site as a result of 
Venoco's repair activities. While there is evidence from other haul-out 
sites in San Francisco Bay that seals will abandon haul-out sites 
during chronic daytime disturbance, the San Francisco Bay seals did not 
completely abandon the site and continued to use the site during 
nighttime hours when there was no disturbance (Paulbitsky, 1975; 
Risebrough et al., 1980).
    Biologically, the primary concerns of harbor seal haul-out site 
abandonment are physiological stress resulting from the inability to 
find alternate haul-out sites and the inability to find alternate haul-
out sites for pupping and molting. In the Carpinteria case, there are 
two alternate haul-out sites in the vicinity; offshore rocks west of 
the beach and off Carpinteria Beach State Park. Harbor seals have been 
observed hauling out in these locations after having been disturbed on 
the beach (Sadler, 1976;

[[Page 63681]]

Rambo, 1978; Bowland, 1978; Carpinteria Seal Watch records; Howorth, 
1995). In order to minimize disturbance to the Carpinteria site as much 
as possible all activities undertaken by Venoco will be subject to the 
mitigation conditions in the IHA, which are designed to reduce the 
sights and sounds associated with human presence. Further, there will 
be no access to the beach from December 1-May 31, pursuant to the City 
of Carpineria's Municipal Code, eliminating potential disturbance from 
Venoco's activities during the pupping season.

Mitigation, Monitoring and Reporting Concerns

    Comment 2: The County of Santa Barbara, Energy Division and the 
California Coastal Commission both recommended that NMFS require safety 
zones and ramp-up procedures for the pile driving operations occurring 
near the harbor seal haul-out area to address the potential for 
acoustic harassment and injury. Specifically, the County of Santa 
Barbara recommended that NMFS' mitigation requirements follow previous 
conditions imposed by the California Coastal Commission for work 
necessary to stabilize two leaking oil wells located in the surf zone, 
including designating a 500-foot (152-meter) safety zone around pile 
driving activity, an initial ramp up period at the commencement of pile 
driving activities, and scheduling of pile driving activities during 
periods of low tides to the maximum extent feasible.
    Response: Under the IHA, Venoco must establish a 500-foot (152-
meter) buffer zone around each of the pile driving sites. If any marine 
mammal is sighted within this 500-foot (152-meter) zone immediately 
prior to planned commencement of driving, pile driving must not occur 
until marine mammals have left the area. In addition, pile driving must 
not commence unless the buffer zone can be monitored for a minimum of 
15 minutes immediately prior to the start-up of the pile driving 
episode. Due to the characteristics of the sounds produced by these 
pile-driving operations, NMFS does not support an initial ramp-up 
period during Venoco's repairs. Pile driving in a different sediment 
type (i.e., clay) than at Carpinteria has shown that instituting an 
initial ramp-up period at the commencement of pile-driving activities 
may lengthen the period of time and necessitate higher energy levels to 
adequately drive the piles, thus increasing the amount of time marine 
mammals are exposed to increased sound levels (California Department of 
Transportation, 2001). Until there is better data on the operational 
requirements of ramping-up pile driving activities in varying sediment 
types, NMFS will not require ramp-up for any pile-driving activity. In 
contrast, NMFS does support an initial ramp-up period at the 
commencement of seismic and shallow-hazard surveys.
    NMFS found no scientific or anecdotal evidence that scheduling pile 
driving activities only during periods of low tides would reduce the 
disturbance to seals while they are hauled out. On the contrary, the 
greatest number of harbor seals observed hauled out at the Carpinteria 
site was in the month of September during an early morning low tide 
(Horworth, 1995). Clearly the tide cycles, as well as still 
undetermined environmental variables, play a significant role in harbor 
seal haul out behavior; however, Howorth (1995) noted that the most 
prevalent cause of natural disturbance to the Carpinteria haul out site 
was from waves striking the beach and washing over seals on the rising 
tides. If pile driving activities occurred during this rising tide 
phase, it may be very difficult for monitors to determine a causal 
relationship between seals entering the water, environmental variables, 
and repair activities. In order to gather more information on the 
relationship between harbor seal behavior, environmental factors, and 
the repair activities, the IHA requires the collection and reporting of 
the following information: tide height, sea state, weather conditions, 
type of repair activity being conducted, and harbor seal observations 
(including number and age ranges present and behavior).
    Comment 3: The California Coastal Commission recommended that the 
authorization require the presence of one or more onsite biological 
monitors with the authority to suspend project operations if marine 
mammals are observed within or enter into established safety zones or 
if it is determined that impacts to marine mammals are greater than 
those authorized in the IHA.
    Response: All IHA's require the presence of one or more onsite 
biological monitors, with relevant marine mammal experience and 
approved by NMFS, to document marine mammal presence and any 
disturbances. These monitors have the authority to suspend activities 
that are in violation of the conditions set out in the IHA.
    Comment 4: The City of Carpinteria requested that the City's 
Municipal Code governing access to the city beach from December 1-May 
31 each year be made part of the conditions of the proposed 
authorization. The City supports NMFS' proposals to condition the 
authorization so that all noise, sudden movement, and unnecessary 
personnel be minimized in or adjacent to the project site.
    Response: NMFS has made the Municipal Code part of the IHA 
conditions by restricting work on the pipeline and other activities 
occurring on the beach or surf zone within 750 ft (230 m) of the harbor 
seal haul-out from December 1-May 31.
    Comment 5: The private citizen who commented volunteers with the 
Carpinteria Seal Watch. This commentor protested the application for 
takings and requested that NMFS condition the authorization so that: 
(1) work would not occur between November 30 and May 31, (2) work would 
not occur during the molting season, (3) work would be ceased if the 
seals are not returning in ``usual'' numbers during the evening hours 
after the workday, and (4) monitoring biologist(s) would consult with 
Carpinteria Seal Watch representatives to discuss daily observations 
and data collection.
    Response: The IHA issued by NMFS restricts work on the pipeline and 
other activities occurring on the beach or surf zone from December 1-
May 31. However, based on previous harbor seal observations there is no 
scientific or anecdotal evidence to support restricting work during the 
molting season (SRS Technologies, 2001). Scientific research and 
monitoring studies carried out on haul-out sites on Vandenberg Air 
Force Base in California from 1997 through 2001 have shown that molting 
Pacific harbor seals entering the water because of disturbance from 
rocket launches are not adversely affected in their ability to molt and 
do not become subject to thermo-regulatory stress. Until similar site-
specific research is carried out on the Carpinteria haul-out, NMFS 
accepts the Vandenberg evidence as the best scientific information 
available on the behavior of the California stock of Pacific harbor 
seals during molting. While on average the greatest number of harbor 
seals haul out during the molting season (starting in May and 
continuing through the summer), this is confounded at the Carpinteria 
site by a September estimate of 364 seals during an early morning low 
tide (Horworth, 1995). Clearly, not only molting and pupping, but tide 
cycle, as well as still undetermined environmental variables, play a 
significant role in harbor seal haul-out behavior.
    Given this difficulty in determining the underlying natural factors 
involved

[[Page 63682]]

in harbor seal haul-out behavior, NMFS cannot assume that in all cases 
a failure of seals to return to the beach during the evening hours 
after work has finished is a direct result of the daytime work 
activities. However, in order to mitigate for disturbances that could 
result from Venoco's activities, the IHA is conditioned such that if 
the biological monitor(s) have direct evidence that work activities 
during the day resulted in 100 percent haul-out abandonment with no 
return to the haul-out site after work has ceased for a full 48-hour 
period, then the monitor must notify Venoco, and Venoco must contact 
NMFS to discuss appropriate changes to the mitigation plan.
    NMFS agrees that the Carpinteria Seal Watch data will be an 
important contribution to the overall monitoring of the marine mammal 
impacts of Venoco's activities. In addition, the Seal Watchers provide 
an invaluable service in educating the public about the potential for 
human activities to negatively impact the harbor seals and their haul-
out habitat. The biological monitor(s) will consult with Seal Watch 
representatives at the beginning and end of Venoco's repair activities 
to share observational data.

Description of Marine Mammals and Habitat Potentially Affected by 
the Activity

    Harbor seals generally are non-migratory, with local movements 
associated with such factors as tides, weather, season, food 
availability, and reproduction (Scheffer and Slipp, 1944; Fisher, 1952; 
Bigg, 1969, 1981). They haul out on rocks, reefs, beaches, and drifting 
glacial ice, and feed in marine, estuarine, and occasionally fresh 
waters. Harbor seals have also displayed strong fidelity for haulout 
sites (Pitcher and Calkins, 1979; Pitcher and McAllister, 1981). The 
eastern Pacific harbor seal has an estimated population of 285,000 
individuals distributed along the entire west coast of North America 
from the Pribilof and Aleutian Islands in Alaska to Baja, CA.
    In Carpinteria, Pacific harbor seals haul out year round. This area 
is one of two along the mainland coast of southern California that is 
readily accessible to the public. The other haul out is in La Jolla, 
CA. There are four other sizable haul outs along the mainland coast of 
Santa Barbara County, one at Naples, one at Point Conception, and two 
at Vandenberg Air Force Base. However, unlike the Carpinteria haul out, 
these sites are on private land and not readily accessible to the 
public.
    In Carpinteria, peak numbers are reached during the pupping season 
(late February through March) and molting season (summer months). The 
pups born at these sites are weaned in 4 to 6 weeks, so nearly all pups 
are independent by the end of May. Twenty to 30 pups are usually born 
there each year (Howorth, 1995, 1998). A peak abundance count made 
during the 1998 pupping season was 345 seals (Howorth, 1998).
    The project site is adjacent to a small beach used by harbor seals 
as a haul-out and rookery area. Harbor seals continue to use this area 
despite pier activity and human presence (Howorth, 1995, 1998). Two-
hundred and sixty-five feet (ft) (81 meters (m)) east of Casitas Pier, 
a small sandy beach and offshore rock area marks the western limits of 
the local harbor seal haul outs.
    California sea lions (Zalophus californianus) do occasionally haul 
out on the beach or rocks adjacent to the project site. However, such 
individuals are usually not healthy and are taken to the Santa Barbara 
Marine Mammal Center (Howorth, 1995, 1998).
    Bottlenose dolphins (Tursiops truncatus) and the eastern North 
Pacific gray whale (Eschrichtius robustus) have been reported near the 
project site (Howorth, 1995, 1998). Both species, when sighted near the 
project site, have consistently avoided the pier. Years of data from 
previous projects and from the Carpinteria Seal Watch have not observed 
any instances of cetaceans within the project area.

Potential Effects on Marine Mammals and their Habitat

    Potential harassment may result from noise generated by repair 
activities to the pipeline as well as from the physical presence of 
people and machinery on the beaches.
    Seals may be disturbed and leave the beach when pile driving 
activities are underway; however, previous monitoring has shown that 
all seals returned once activities had ceased (Venoco, 2001).

Number of Marine Mammals Potentially Harassed

    During repair work carried out by Venoco an estimated 364 Pacific 
harbor seals have the potential to be incidentally harassed. This 
number is the maximum count documented by Howorth (1995, 1998) during 
the summer molting season.

Mitigation

    Mitigation measures described in this section have been designed to 
reduce the potential for harassment and eliminate the potential for 
incidental injury and mortality due to repair activities.
    If operationally feasible, all repairs will take place during 
daylight hours in a three-week period before the annual harbor seal 
pupping period and while the beach is open to the public. During this 
period few, if any, seals are present on shore because beachwalkers, 
dogs, joggers, kayakers, and others frequent the beach during daylight 
hours. During November, early storms and currents erode the sand 
covering the rocks and reefs, which will also reduce the amount of 
excavation necessary to expose the base of the pier pilings.
    Work on pilings closest to the haul-out site will be conducted at 
the beginning of the project and only during low tides (American Marine 
Corp., 2000). Therefore, any potential for disturbing harbor seals 
would be limited to times of low tide or approximately 4 hours each 24-
hour period.
    To reduce the potential for acoustically and visually disturbing 
the seals, mitigation measures include: establishment of a 500-foot 
(152-meter) buffer zone around each of the pile driving sites; 
equipping the diving air compressor, trucks, and equipment motors with 
quiet mufflers; disconnecting backup alarms on trucks; securing all 
lines, floats, cables, etc. used in handling materials to the pier or 
removing them from the site; instruction of all personnel on avoidance 
of rapid or sudden movements, shouting, throwing objects or other 
actions that could startle the seals; allowing only the minimum number 
of people needed to perform the work on the beach; insuring divers stay 
submerged while performing their tasks; and using hand-held radio for 
verbal communications from the pier or other project site to divers or 
workers.
    Successful implementation by Venoco and their contractors of 
additional mitigation measures specified by NMFS in the IHA are 
designed to further reduce the potential for adverse impacts on Pacific 
harbor seals in the area.

Monitoring

    Issuance of the IHA requires Venoco to monitor the impact of pile 
driving and other repair activities on harbor seals. Monitoring will be 
conducted by one or more NMFS-approved biologists. As part of the IHA 
monitoring requirements, Venoco will notify the designated on-site 
biological monitor(s) at least 30 minutes before a pile driving session 
begins and if there are unexpected changes to the work plan. In 
addition, monitoring information should be collected a minimum of 1 
hour before the work day begins, a minimum of 15 minutes prior to

[[Page 63683]]

planned pile driving sessions, during pile driving sessions, and for a 
minimum of 1 hour after pile driving or other work is completed.
    On-site biological monitor(s) are required to collect the following 
information related to harbor seals: (1) date; (2) time of arrival/
departure of monitor(s) and work crew; (3) number of harbor seals on 
the beach; (4) number of harbor seals in the water; (5) number of 
adults, subadults, and pups; (6) number of molting seals; (7) 
disturbance reactions observed; and (8) Concurrently, the monitor(s) 
will record type of repair activity (including specific equipment 
used), location of activity, and duration of activity. The monitor(s) 
will also collect the following information related to environmental 
conditions: (1) date; (2) time; (3) cloud cover; (4) visibility; (5) 
wind direction; (6) wind velocity; (7) swell direction; (8) swell 
height; and (9) tidal stage. The presence of other marine mammal 
species on the beach and in the water is also a requirement.
    The NMFS-approved biological monitor has the authority under the 
IHA to prevent pile driving operations from commencing if a harbor seal 
pup is sighted on the beach. If a harbor seal pup is sighted after pile 
driving has begun, then the monitor is required to notify Venoco, who 
must stop pile driving as soon as operationally practicable and consult 
immediately with NMFS' Southwest Regional Office.

Reporting

    During periods of operation, Venoco will provide weekly reports to 
NMFS' Southwest Regional Administrator, including a summary of the 
previous week's monitoring activities and an estimate of the number of 
seals that may have been disturbed as a result of repair activities. A 
description of the repair activities at the time of observation will 
also be provided.
    An interim report must be submitted to the Southwest Regional 
Administrator on or about July 30, 2001. This report will contain a 
description of the methods, results, and interpretation of all 
monitoring tasks. A draft final report is due 90 days after expiration 
of the IHA. If comments are received from the Regional Administrator on 
the draft final report, then the final report must be submitted to the 
Southwest Regional Administrator within 30 days after receiving 
comments. If no comments are received from the Southwest Regional 
Administrator, the draft final report will be considered the final 
report.

Endangered Species Act (ESA) Consultation

    This proposed authorization would not allow the take of any species 
listed as endangered or threatened under the ESA; therefore, no ESA 
Section 7 consultation was necessary for issuance of the IHA.

Coastal Zone Management Act Consistency

    On November 19, 2001, the California Coastal Commission issued a 
conditioned emergency permit to Venoco, Inc. to begin repair activities 
on the Carpinteria pipeline. The determination to issue an emergency 
permit was based on the conclusion of the Commission that an imminent 
threat to the nearby seal haul-out and the marine environment will 
exist if repairs to the pipeline are not made due to inadequate support 
of the pipeline during the winter storm season. The Commission's 
emergency permit contains conditions similar to NMFS' IHA designed to 
prevent the ``take'' of marine mammals during the course of Venoco's 
activities. All of the marine mammal conditions were added to the 
Coastal Commission's permit in close consultation with NMFS.

Conclusions

    NMFS has determined that the impact of conducting repair activities 
at the Carpinteria Oil and Gas Processing Facility in Carpinteria, CA, 
will have a negligible impact on Pacific harbor seal stocks in 
California. While behavioral modifications may be made by individuals 
to avoid the resultant noise and activities, the avoidance of the area 
is not reasonably expected to, and is not reasonably likely to, 
adversely affect the annual rates of recruitment or survival of the 
stock.
    The number of potential harassment takings is estimated to be 
small. In addition, no take by injury or death is anticipated, and the 
potential for such taking will be avoided through the incorporation of 
the mitigation measures mentioned in this document and in the IHA. 
Haul-out sites, rookeries, mating grounds, areas of concentrated 
feeding, and other areas of special significance for harbor seals 
within or near the planned area of operations will be avoided in order 
to minimize any potential impacts.

Authorization

    NMFS has issued an IHA for repair activities at the Carpinteria Oil 
and Gas Processing Facility in Carpinteria, CA from November 28, 2001, 
until November 28, 2002, provided the mitigation, monitoring, and 
reporting requirements defined by NMFS in the IHA are implemented 
successfully. NMFS has determined that the proposed activity would 
result in the harassment of only small numbers of Pacific harbor seals 
and would have a negligible impact on stocks of harbor seals in 
California waters.

    Dated: December 3, 2001.
David Cottingham,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 01-30465 Filed 12-7-01; 8:45 am]
BILLING CODE 3510-22-S