[Federal Register Volume 67, Number 146 (Tuesday, July 30, 2002)]
[Notices]
[Pages 49289-49292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19233]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 070102D]


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 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 Department of the Navy, 
Naval Base Ventura County (NBVC) for an authorization to take small 
numbers of marine mammals by harassment incidental to the demolition 
and removal of buildings located at the entrance of Mugu Lagoon in 
Point Mugu, CA. Under the Marine Mammal Protection Act (MMPA), NMFS is 
requesting comments on its proposal to authorize NBVC to incidentally 
take, by harassment, small numbers of harbor seals and other marine 
mammals in the above mentioned area from September 26, 2002 through 
September 26, 2003. This authorization proposal is identical to the 
authorization issued to NBVC on September 26, 2001.

DATES: Comments and information must be received no later than August 
29, 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 and a list of references used in 
this document may be obtained by writing to this address or by 
telephoning one of the contacts listed here.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, (301) 713-2322, 
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.
    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.
    Pursuant to section 101(a)(5)(D), NMFS issued an Incidental 
Harassment Authorization (IHA) to NBVC on September 26, 2001, for the 
harassment of small numbers of marine mammals incidental to the 
demolition and removal of buildings located at the entrance of Mugu 
Lagoon in Point Mugu, CA during a 1-year period. On April 10, 2002, 
NMFS received a letter from NBVC requesting that the IHA be re-issued 
for an additional year to allow the completion of building demolition 
and removal activities at Mugu Lagoon. These activities are summarized 
below. A more complete description may be found in the original 
proposal of IHA issuance published on October 1, 2001 (66 FR 50416).

Description of Activities

    This proposed authorization for the harassment of small numbers of 
marine mammals incidental to the demolition and removal of 
approximately 12 buildings and associated infrastructures is almost 
identical to that proposed in the October 1, 2001 Federal Register 
notice. The one difference is that the current proposal is only for 
phase two of the demolition activities. Phase one activities, involving 
cleanup and removal of contaminated building materials, sand, and soil 
were completed in 2001 and a satisfactory marine mammal monitoring 
report covering this phase of the work was submitted to NMFS on 
December 21, 2001.
    The second phase of the project, scheduled to begin after August 1, 
2002, will be the demolition and removal of the remaining structures 
using standard construction procedures and equipment.

[[Page 49290]]

 NBVC has requested a new authorization to ensure that all phase two 
activities are in compliance with the MMPA in case work is not 
completed within the 1-year time period of the authorization ending 
September 26, 2002. 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 2002 is contained in 
the application (The Environmental Company and LGL Ltd., 2001) which is 
available upon request (see ADDRESSES).
    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. No explosives will be used during the project and demolition crews 
will work only during daylight periods.

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 delphis or 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.

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, 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 assumes 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. Startle and alert reactions 
accompanied by large-scale movements, such as stampedes into the water, 
may have adverse effects on individuals and are considered a ``take'' 
by NMFS because of the potential for injury or death. As described in 
this document, 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).
    According to NBVC's 2001-2002 marine mammal monitoring report, 
seals present at the haul-out site responded to the front loader back-
up alarm (measured at approximately 78 dBA) by raising their heads and 
looking toward the construction site. During sounding of the alarm, 
approximately 7 seals in the haul-out moved around the site, but did 
not enter the water. Shortly after the alarm stopped, the seals resumed 
their ``normal'' haul-out behavior. After this occurred, the back-up 
alarm was disengaged to minimize disturbance.
    For a further discussion on the anticipated effects of the planned 
demolition activities on marine

[[Page 49291]]

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 2002
------------------------------------------------------------------------
Harbor Seals*                                                        288
Northern Elephant Seal*                                                8
California Sea Lion*                                                  12
------------------------------------------------------------------------
* Some individual seals may be harassed more than once

Possible 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.

Possible Effects of Demolition Activities on Subsistence Needs

    There are no subsistence uses for these pinniped species in 
California waters; 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). Mitigation 
measures will include:
    (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 would be via direct visual observation. NBVC 
proposes to conduct a minimum of twice-daily monitoring efforts during 
each day 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 would 
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) 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 (6) 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 would be documented during the demolition. After 
each day's demolition activities, the marine mammal monitor would again 
inspect the work site and record information about the marine mammals 
within the lagoon. This monitoring plan would also provide data 
required to characterize the extent and nature of ``taking''.

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.

[[Page 49292]]

Endangered Species Act (ESA)

    NBVC has not requested the take of any species listed under the ESA 
and the proposed authorization would not affect any such species. 
Therefore, NMFS has determined that a section 7 consultation under the 
ESA 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 has prepared 
a Record of Categorical Exclusion for all phases of this demolition 
project.
    In accordance with section 6.01 of the National Oceanic and 
Atmospheric Administration (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 a 
programmatic NEPA assessment conducted on the impact of NMFS' 
rulemaking for the issuance of IHAs (61 FR 15884; April 10, 1996); the 
content and analysis of the NBVC's request for an IHA and its Site 
Work/Final Survey Plan, that the proposed 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. Therefore, based on this analysis, the action of issuing an 
IHA for these activities meets the definition of a ``Categorical 
Exclusion'' as defined under NOAA Administrative Order 216-6 and is 
exempted from further environmental review.

Preliminary Conclusions

    NMFS has preliminarily determined that the short-term impact of 
conducting demolition and removal activities in Mugu Lagoon will 
result, at worst, in a temporary modification in behavior by harbor 
seals, and potentially northern elephant seals and California sea 
lions. While behavioral modifications may be made by these species to 
avoid the resultant acoustic and visual stimuli, 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. Therefore, NMFS 
preliminarily concludes that the effects of the planned demolition 
activities will have no more than a negligible impact on pinnipeds.
    Due to the localized nature of these activities, the number of 
potential takings by harassment are estimated to be small. In addition, 
no take by injury and/or death is anticipated, and the potential for 
temporary or permanent hearing impairment will be avoided through the 
incorporation of the mitigation measures mentioned in this document. No 
rookeries, mating grounds, areas of concentrated feeding, or other 
areas of special significance for marine mammals occur within or near 
Mugu Lagoon during the period of demolition activities.

Proposed Authorization

    NMFS proposes to issue an IHA to NBVC for demolition activities to 
take place in Mugu Lagoon, CA during a 1-year period 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 potentially northern elephant seals and California sea lions; 
would have no more than a negligible impact on these marine mammal 
stocks; and would not have an unmitigable adverse impact on the 
availability of marine mammal stocks for subsistence uses.

Information Solicited

    NMFS requests interested persons to submit comments and information 
concerning this request to Donna Wieting, Chief, Marine Mammal 
Conservation Division, Office of Protected Resources, NMFS, 1315 East-
West Highway, Silver Spring, MD 20910-3225.

    Dated: July 23, 2002.
David Cottingham,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 02-19233 Filed 7-29-02; 8:45 am]
BILLING CODE 3510-22-S