[Federal Register Volume 67, Number 185 (Tuesday, September 24, 2002)]
[Notices]
[Pages 59824-59827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24245]



[[Page 59824]]

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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 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 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 September 26, 2002, until September 26, 2003.

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: Kenneth Hollingshead, (301) 713-2322, 
ext 128 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.

Summary of Request

    Pursuant to section 101(a)(5)(D), NMFS issued an IHA to NBVC on 
September 26, 2001, for the harassment of small numbers of marine 
mammals incidental to the demolition and removal of 12 buildings and 
associated infrastructures located at the entrance of Mugu Lagoon in 
Point Mugu, CA during a 1-year period (66 FR 50416, October 1, 2001). 
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.

Description of Activities

    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. This proposed authorization is almost identical to that proposed in 
the October 3, 2001 (66 FR 50416) notice. The single difference is that 
the current proposal is only for completion of 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, which is scheduled to begin upon 
completion of the harbor seal pupping season around August 1, 2002, 
will be the demolition and removal of the remaining structures using 
standard construction procedures and equipment. No explosives will be 
used during the project and demolition crews will work only during 
daylight periods. 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).

Comments and Responses

    On July 30, 2002 (67 FR 49289), 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. 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.

[[Page 59825]]

    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 used only 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 
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 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 Harassment Takes
                 Species                                2002
------------------------------------------------------------------------
Harbor Seals*                                                       288
                                                                      8
Northern Elephant Seal*                                              12
California Sea Lion*                       .............................
------------------------------------------------------------------------
* Some individual seals may be harassed more than once


[[Page 59826]]

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, 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 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 original application, NBVC provided a proposed 
monitoring plan for assessing impacts to marine mammals from demolition 
activities in Mugu Lagoon. This monitoring will 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 continue to be conducted via direct 
visual observation. NBVC must 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 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) 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 will be documented during the demolition. After 
each day's demolition activities, the marine mammal monitor will again 
inspect the work site and record information about the marine mammals 
within the lagoon. 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 (ESA)

    NBVC's activities will not affect any listed species. Therefore, 
NMFS has determined that a section 7 consultation under the ESA is not 
required.

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.

[[Page 59827]]

    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 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.

Determinations

    Based on the evidence provided in the application and this 
document, 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 has determined 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 modifications may be made by these species to avoid 
the acoustic and visual stimuli resulting from 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.
    Due to the localized nature of these activities, the number of 
potential harassment takings of harbor seals, northern elephant seals, 
and California sea lions 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.

Authorization

    Accordingly, NMFS has issued an IHA to NBVC for demolition and 
building removal 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 18, 2002.
David Cottingham,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 02-24245 Filed 9-23-02; 8:45 am]
BILLING CODE 3510-22-S