[Federal Register Volume 67, Number 142 (Wednesday, July 24, 2002)]
[Notices]
[Pages 48443-48446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-18742]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 062802C]


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 receipt of application and proposed authorization for 
a small take exemption; request for comments.

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SUMMARY: NMFS has received a request from the California Department of 
Transportation (CALTRANS) for a renewal of its Incidental Harassment 
Authorization (IHA) to take small numbers of marine mammals, by 
harassment, incidental to seismic retrofit construction of the 
Richmond-San Rafael Bridge (the Bridge), San Francisco Bay (SFB), CA. 
Under the Marine Mammal Protection Act (MMPA), NMFS is requesting 
comments on its proposal to renew a small take authorization to 
CALTRANS to incidentally take, by harassment, small numbers of Pacific 
harbor seals and possibly California sea lions for 1 year.

DATES: Comments and information must be received no later than August 
23, 2002.

ADDRESSES: Comments on the application should be addressed to Donna 
Wieting, Chief, Marine Mammal Conservation Division, Office of 
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910-3225. Comments cannot be accepted if submitted via e-mail or the 
Internet. A copy of the application, Environmental Assessment (EA) and/
or monitoring reports may be obtained by writing to this address or by 
telephoning the contact listed here. Publications referenced in this 
document are available for viewing, by appointment during regular 
business hours, at this address.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of 
Protected Resources, NMFS, (301) 713-2055.

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.
    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 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.
    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 May 28, 2002, 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 was renewed on January 8, 
2000 (65 FR 2375, January 14, 2000) and September 19, 2001 (66 FR 
49165, September 26, 2001). The current IHA expires on September 18, 
2002. The renewed authorization request is for the possible harassment 
of small numbers of Pacific harbor seals (Phoca vitulina) and possibly 
some California sea lions (Zalophus 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 began this year, 
will take approximately 7 to 8 months to complete.

Description of Habitat and Marine Mammals Affected by the Activity

    A description of SFB ecosystem and its associated marine mammals 
can be found in the original CALTRANS application (CALTRANS 1997) and 
in CALTRANS (1996). Castro Rocks are a small chain of rocky islands 
located next to the Bridge and approximately 1500 ft (460 m) north of 
the Chevron Long Wharf. They extend in a southwesterly direction for 
approximately 800 ft (240 m) from pier 55. The rocks start at about 55 
ft (17 m) from pier 55 (A rock) and end at approximately 250 ft (76 m) 
from pier 53 (F rock). The chain of rocks is

[[Page 48444]]

exposed during low tides and inundated during high tide.

Marine Mammals

    General information on harbor seals and other marine mammal species 
found in Central California waters can be found in Forney et al. (2000, 
2001), which are available at the following URL: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_
    Program/sars.html Refer to those documents for information on these 
species. The marine mammals likely to be affected by work in the Bridge 
area are limited to harbor seals and California sea lions.
    The harbor seal is the only marine mammal species expected to be 
found regularly in the Bridge area. A detailed description of harbor 
seals was provided in the 1997 notification of proposed authorization 
(62 FR 46480, September 3, 1997) with corrections and clarifications 
provided in the notice of IHA issuance (62 FR 67045, December 23, 
1997). This information is not repeated here, but may be referenced at 
the following URLs:
    http://frwebgate4.access.gpo.gov/cgi-bin/ waisgate.cgi? WAISdoc
    ID=9398588449 +1 +0 +0 & WAI Saction =retrieve
    http://frwebgate3.access.gpo.gov/cgi-bin/ waisgate.cgi?WAISdoc
    ID=94045429635 + 0 + 0 + 0& WAI Saction = retrieve
    It should be noted that pups are born in mid- to late-March, peak 
numbers of pups are observed in early May, and, by the first week in 
June, all pups are weaned (Kopec and Harvey, 1995). Estimated pup 
counts at Castro Rocks were 35 in 1999, 40 in 2000 and 40 in 2001 (A. 
Bohorquez pers. comm in Green et al., 2001). This represents 
approximately 22-24 percent of the pups born in SFB.
    The California sea lion primarily uses the Central SFB area to 
feed. California sea lions are periodically observed at Castro Rocks. 
No pupping or regular haulouts occur in the project area.

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 only 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).
    Marine mammal monitoring under the current and previous IHAs has 
been conducted at Castro Rocks and at two ``control'' haul-out 
locations in SFB, Mowry Slough and Yerba Buena Island (Green et al., 
2001, 2002) since 1998. To date, over 10,000 hours of observations have 
been conducted at these sites with two-thirds of those hours at Castro 
Rocks. While disturbances can consist of head alerts, approaches to the 
water, and flushes into the water, only the latter behavior is 
considered by NMFS to rise to Level B harassment. At Castro Rocks, of 
all flush disturbances monitored during the day, the major harassment 
sources were watercraft (e.g. motorboats, sailboats, tankers, kayaks 
and jet skis) with 0.128 disturbances/hr field time (d/hr); wildlife 
(seals and birds) with 0.075 d/hr; anthropogenic (debris, workmen on 
bridge with 0.040 d/hr; and ``research'' with 0.021 d/hr. Construction 
activities resulted in 0.0165 d/hr. There were fewer flushes observed 
at night. For more detailed information on the extent of take by 
harassment at Castro Rocks by activities other than the requested 
authorization, refer to Green et al. (2002).
    During the work period (August 1 through February 14), 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. In addition, the number of seals 
disturbed will vary daily depending upon tidal elevations. Monitoring 
by Green et al. (2002) indicates that although overall seal numbers 
each month of the year are not significantly different across years, 
there are differences in subsite use by seals at Castro Rocks during 
both the daytime and nighttime. For example, the average number of 
seals hauled out on Castro Rocks (rocks A and C) during the fall of 
2001 (when construction activity was taking place within the area of 
the haul-out site) was significantly different than the average number 
of seals hauled out on Castro Rocks during 1998-2000, prior to the 
construction period. It was noted that fewer seals were using rock A, 
located closest to the Bridge, and more seals were hauling out on rock 
C, which was located farther from the Bridge than rock A. The number of 
seals hauled out on rocks B and E was not significantly different 
between years while the number hauled out on rocks D and F was greater 
during the fall of 2000 and 2001 than 1998 and 1999. For a more 
detailed discussion on the distribution of harbor seals during the work 
and non-work periods and levels of impact by various natural and 
anthropogenic disturbance sources, see Green et al. (2002) which is 
available upon request (see ADDRESSES).
    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 haulout 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 
haulout 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 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 have been implemented by CALTRANS as part of their activity. 
General restrictions include: with the exception of the Concrete 
Trestle Section, no piles will be driven (i.e., no repetitive pounding 
of piles) on the Bridge between 9 p.m. and 7 a.m.; an imposition of a 
construction noise limit of 86 dBA at 50 ft (15 m) between 9 p.m. and 7 
a.m.; and, a limitation on construction noise levels for 24 hrs/day in 
the vicinity of Castro Rocks during the pupping/molting restriction 
period.
    To minimize potential harassment of marine mammals, in the current 
and previous authorizations NMFS required CALTRANS to comply with the 
following mitigation measures: (1) A February 15 through July 31 
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; (2) no watercraft will be 
deployed by CALTRANS employees or contractors, during the

[[Page 48445]]

year within the Work/Boat Exclusion Zone (W/BEZ) 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 current W/BEZ 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 W/BEZ is located 
300 ft (91 m) from the most northern tip of Castro Rocks, and the 
southern boundary is located 300 ft (91 m) from the most southern tip 
of Castro Rocks. The eastern boundary is currently located 300 ft (91 
m) from the most eastern tip of Castro Rocks, and the western boundary 
is currently located 300 ft (91 m) from the most western tip of Castro 
Rocks. This W/BEZ is restricted as a controlled access area and is 
marked off with buoys and warning signs for the entire year.
    For this proposed IHA, CALTRANS has requested, among other things, 
that the W/BEZ be modified from its current location so that the 
eastern boundary is shifted from 100 ft (30.5 m) east of Pier 57 to 100 
ft (30.5 m) west of Pier 57. This will maintain a 400-ft (122-m) 
``buffer,'' as opposed to the existing 600-ft (183-m) buffer, between 
the work at Pier 57 and ``A'' rock. CALTRANS believes that this 
modification is reasonable based on observed seal behavior during the 
construction within the W/BEZ that harbor seals adjusted their location 
preference on Castro Rocks by moving westerly to rocks further from the 
construction (see discussion previously in this document). However, 
CALTRANS notes that there has not been a statistically significant 
change in the total numbers of animals that utilize the Castro Rocks 
haulout.
    In addition to shifting the W/BEZ, CALTRANS is requesting that the 
period in which work is allowed in the vicinity of Castro Rocks be 
modified from February 15th to March 1st. CALTRANS is requesting this 
modification due to unforseen circumstances affecting the ability of 
the contractor to the seismic retrofit work on Pier 57. This will allow 
the contractor to complete the work this coming season and to stay 
under budget.
    The current Closure Period (February 15-July 31) was designed to 
encompass the entire harbor seals pupping and breeding seasons and 
nearly the entire molting season at Castro Rocks. Thus, the Closure 
Period includes the entire pupping season at Castro Rocks and a 
substantial pre-pupping period when females are moving into pupping 
areas (62 FR 67045, December 23, 1997). Because moving the Closure 
Period from February 15th to March 1st would still provide a two-week 
window prior to the onset of successful pupping (March 15th), and 
because NMFS does not find scientific evidence indicating that female 
harbor seals need a ``quiet period'' from general noise in order to pup 
successfully, NMFS has preliminarily determined that shifting the 
Closure Period from February 15th to March 1st would not have a 
significant impact on harbor seal pupping.
    Finally, CALTRANS has requested that the period in which work is 
allowed in the vicinity of Castro Rocks be modified from August 1st to 
a new date of July 16th. As mentioned in previous documents, newborn 
harbor seal pups are able to swim immediately after birth (Zeiner et 
al., 1990) and pups are weaned by the first week of June. Therefore 
terminating the Closure Period on July 16th should not affect pup 
survival. Under the current and previous authorizations, the July 31st 
ending date for the Closure Period was established to protect harbor 
seals during the molting season. However, those documents also noted 
that it is likely that harbor seals evolved adaptive mechanisms to deal 
with exposure to the water during the molt. For example, on some harbor 
seal haul-outs (such as Castro Rocks) during the molting season seals 
must enter the water once or even twice a day due to tidal fluctuations 
limiting access to the haul-out. Also, since harbor seals lose hair in 
patches during the molt, they are never completely hairless and would 
not be as vulnerable to heat loss in the water during this period 
compared to other seals (e.g., elephant seals) that lose all their hair 
at one time. Finally, if the levels of harbor seal disturbance during 
the molt are relatively high, seals are likely to utilize other local 
haul-out sites during the molt (DeLong, R., pers. commun. 1997; Hanan, 
D., pers. commun. 1997; Harvey, J., pers. commun. 1997). Hanan (1996) 
found that although harbor seals tagged at an isolated southern 
California haul-out tended to exhibit site fidelity during the molt, 
some seals were observed molting at other nearby haul-outs. Based on 
these reasons, NMFS has preliminarily determined that changing the last 
day of the Closure Period to July 15th should not significantly affect 
harbor seals in general or molting seals at Castro Rocks in particular.

Monitoring

    NMFS will require CALTRANS to continue to monitor the impact of 
seismic retrofit 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 
haulout 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 
(app. July 16 through February 28) and the Closure Period Phase (app. 
March 1 through July 15). 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 haulout 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, for one 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.

[[Page 48446]]

Reporting

    Under the current and previous IHAs, CALTRANS has provided 
monitoring reports (Green et al. (2001, 2002). The findings from these 
reports have been summarized previously in this document.
    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, 2003.
    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 haulout patterns are similar to 
the pre-retrofit haul-out patterns at Castro Rocks.

National Environmental Policy Act

    In conjunction with the promulgation of regulations implementing 
section 101(a)(5)(D) of the MMPA, NMFS completed an EA on May 9, 1995, 
that addressed the impacts on the human environment from issuance of 
IHAs and the alternatives to that action. NMFS' analysis resulted in a 
Finding of No Significant Impact. In addition, NMFS prepared an 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. Accordingly, this proposed action has not changed 
significantly from the 1997 action, it is categorical excluded from 
further NEPA analysis and, therefore, a new EA will not be prepared. A 
copy of these two relevant EAs are available (see ADDRESSES).

Preliminary Conclusions

    NMFS has preliminarily 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.

Proposed Authorization

    NMFS proposes to renew an IHA to CALTRANS for the potential 
harassment of small numbers of harbor seals and California sea lions 
incidental to seismic retrofit construction of the Bridge, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated. NMFS has preliminarily determined that the proposed 
activity would result in the harassment of only small numbers of harbor 
seals and possibly California sea lions and will 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: July 18, 2002.
David Cottingham
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 02-18742 Filed 7-23-02; 8:45 am]
BILLING CODE 3510-22-S