[Federal Register Volume 68, Number 25 (Thursday, February 6, 2003)]
[Notices]
[Pages 6116-6119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2953]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 121902A]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Installation of a New Floating Dock at the U.S. Coast Guard Pier, 
Monterey, 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.

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

SUMMARY: NMFS has received an application from the United States Coast 
Guard (USCG) for an Incidental Harassment Authorization (IHA) to take 
small numbers of marine mammals, by harassment, incidental to the 
installation of a floating dock in Monterey, CA. Under the Marine 
Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue a small take authorization to the USCG to 
incidentally take, by harassment, small numbers of Pacific harbor seals 
and California sea lions for 1 year.

DATES: Comments and information must be received no later than March 
10, 2003.

ADDRESSES: Comments on the application should be addressed to James 
Lecky, Assistant Regional Administrator for Protected Resources, NMFS - 
Southwest Regional Office, 501 West Ocean Blvd. Suite 4200, Long Beach, 
CA 90802-4213. A copy of the application may be obtained by writing to 
this address or by telephoning the contact listed here. Comments cannot 
be accepted if submitted via e-mail or the Internet.

FOR FURTHER INFORMATION CONTACT: Christina Fahy, Southwest Regional 
Office, NMFS, (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 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 (a) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild; or (b) 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 August 16, 2002, NMFS received a letter from the USCG requesting 
an IHA for the possible harassment of small numbers of California sea 
lions (Zalophus californianus) and Pacific harbor seals (Phoca 
vitulina), incidental to the installation of a new floating dock.
    The installation of a new floating dock is needed to provide better 
and safer access to an 87-ft (26.6-m) Coastal Patrol Boat, USCGC 
Hawksbill (Hawksbill). Currently, the Hawksbill moors at a fixed wharf 
which does not meet the Coast Guard's minimum standards for mooring a 
patrol boat. The tidal range causes severe chafing to the mooring lines 
and difficulties with the access gangway. The Coast Guard estimates 
that the cost of mooring line replacement is approximately $10,000 a 
year. When the patrol boat is at the dock, a crewmember is required to 
be continually present to adjust mooring lines and the gangway about 
every 40 minutes. The Hawksbill has a 10-person crew, which is not 
designed to have one person awake the entire night while in port. 
Finally, several locally produced gangways, mounted from the wharf, 
have failed to give adequate access to the Hawksbill during the entire 
tidal cycle. The installation of a floating dock will eliminate the 
excessive cost to mooring lines and gangway

[[Page 6117]]

replacement, as well as, any unnecessary burden on the crew.

Project Description

    The project is located at 100 Lighthouse Avenue in the city and 
county of Monterey, California. The fixed pier extends east into 
Monterey Bay. The floating dock will be located on the south side near 
the end of the fixed wharf. The installation of the new floating dock 
will consist of installing a new 10 ft x 100 ft (3.05 x 30.5 m) pier, 
including the driving of five new piles.
    The pile driving work will be completed from a welded steel barge 
equipped with a pedestal mounted revolving crane that has a 105-foot 
(32-meter) boom with a 30-ton (27,216-kg) capacity and 25-ft (7.62-m) 
radius. The barge will be mobilized, moved, and tended by a barge 
tender/work boat. The pile driving will be completed using a ``DELMAG 
D19-32 Pile Hammer,'' which is a single piston internal combustion type 
hammer powered by diesel fuel. The pile hammer motor has a single 
piston, which is attached to a 2,000 lb (907 kg) weight. The weight is 
used to drive the piles. The pile design was completed with the 
existing conditions (5 ft (1.5 m) of mud over approximately 5 to 10 ft 
(1.5 to 3.05 m) of 500 lbs. (227 kgs) rock over decomposed granite) in 
mind. The new pile will consist of a 12-in (0.3-m) I-beam driven to 
refusal. It is anticipated that the I-beam will penetrate the mud 
through the rock and a firm toe will be established in the decomposed 
granite. This I-beam will be covered with a 24-in (0.6-m) round pile 
that will be driven to refusal creating a seal with the ocean floor. 
This second pile will be attached to the existing pier with metal 
braces and drained of seawater. After the pile is drained and 
stabilized, the 24-in (0.6 m) pile will be filled with concrete using a 
pump truck.
    The manufacturer of the pile hammer has stated that the maximum in-
air noise level under extreme driving conditions and at maximum refusal 
will be between 90 and 100 decibels (dB)(re 20 microPascal-m) at the 
source; however during this project, extreme conditions will not be 
encountered, and anticipated in-air noise levels should be between 60 
and 85 dB. The manufacturer was not able to estimate the underwater 
noise level. However, acoustic monitoring of pile driving operations on 
the Noyo River (Fort Bragg, CA) using a similar size hammer under 
similar conditions (2 m (6.6 ft) water, mud bottom) and a 12-in (0.3 m) 
I-beam pile measured noise levels of 169 dB (dB re 1 microPascal-meter) 
at 100 m. The closest measurement to the hammer was 30 m, with an 
underwater noise level of approximately 170 dB.
    The pile driving and in water work for this project is expected to 
last 10 days, while the entire project should be completed within 30 
days. Because the site is adjacent to a haul-out for California sea 
lions and near a small colony of Pacific harbor seals, the potential 
exists that these marine mammals may be harassed by the action; 
therefore, an IHA is warranted.

Description of Habitat and Marine Mammals Affected by the Activity

    A description of the Monterey Harbor and its associated marine 
mammals can be found in the USCG application (USCG, 2002) which is 
available upon request (see ADDRESSES).

Marine Mammals

    The marine mammals under NMFS' jurisdiction likely to be found in 
the project area are limited to the California sea lion and the Pacific 
harbor seal. General information on harbor seals and California sea 
lions found in Central California waters can be found in Caretta et al. 
(2001).

California sea lions

    The California sea lion primarily uses the Central California area 
to feed during the non-breeding season. Following the breeding season 
on the Channel Islands, most adult and sub-adult males migrate 
northward to central and northern California and to the Pacific 
Northwest, while most females and young animals either remain on or 
near the breeding grounds throughout the year or move southward or 
northward, as far as Monterey Bay.
    California sea lions are regularly observed in the Monterey Harbor 
area in the autumn, winter, and into the early spring. They regularly 
haul out on the Coast Guard Jetty. Based on ground surveys conducted 
from June 1997 through October 1999, an average of between 143.3 
(standard deviation (SD) = 51.5) and 425 (SD=130.5) sea lions hauled 
out on the jetty during the autumn. Mean number of sea lions observed 
during the winter season (1997-98) was 628 (SD=238.5) animals (Weise 
2000). During ground counts from 1997 to 1999, Weise (2000) estimated 
that approximately 74 percent (SD=18.1 percent) of the sea lions 
observed were juveniles, 14.9 percent were adults (SD=15.3 perecent), 
and 10.5 percent (SD=6.7 percent) were sub-adult males or females. No 
pupping occurs in the project area.

Harbor seals

    A small number of harbor seals are also expected to be found in the 
project area. Harbor seals are distributed throughout the west coast of 
California. In general, they do not migrate, preferring instead to 
forage within several miles of their haul-out sites. In Monterey 
Harbor, harbor seals haul out on a rocky outcropping located 
approximately 300 m (984 ft) inshore of the proposed project site and 
approximately 100 m (328 ft) from a small beach and the Monterey 
Fisherman's Wharf. Based on surveys conducted in the Monterey Harbor, 
less than 20 harbor seals are expected to be found on this site within 
the harbor. The presence of all size classes of animals are possible. 
Harbor seals do not pup on this haulout, although several pupping sites 
are located around the Monterey Peninsula within 3 to 20 km ( 1.9 to 
12.4 mi)of the project site.

Potential Effects on Marine Mammals

    It is possible that California sea lions and harbor seals swimming 
in the vicinity of the project during pile driving may be subject to 
elevated sound pressure levels that could produce a temporary shift in 
the animal's hearing threshold. Construction and human activity around 
the site could also potentially result in behavioral changes in nearby 
pinnipeds. California sea lions and harbor seals may temporarily cease 
normal activities, such as feeding, or pop their heads up above water 
in response to the noise. They may also be curious and choose to 
investigate the project site. However, existing evidence shows that 
most marine mammals tend to avoid loud noises and will likely move away 
from the project site (Richardson et al., 1995). Disturbance from these 
activities is expected to have a short-term negligible impact to a 
number of sea lions and harbor seals. These disturbances will be 
reduced to the lowest level practicable by implementation of the 
proposed work restrictions and mitigation measures (see Mitigation).
    During the installation of the floating dock, the incidental 
harassment of California sea lions is expected to occur on a daily 
basis upon initiation of the pile driving. Sea lions are also likely to 
be initially harassed by the barge tender moving the barge into place. 
If the animals no longer perceive construction noise and activity as 
being threatening, they are likely to resume their regular hauling out 
behavior. The number of sea lions disturbed will vary daily, but 
animals in the water near the project

[[Page 6118]]

site or hauled out closest to the project site are more likely to be 
disturbed than animals hauled out at the farther end of the jetty. 
Based on past ground surveys, the number of California sea lions that 
may potentially be harassed could range from 200 to 400, and possibly 
as many as 600 animals may move each day as a result of the project 
activities.
    Whether harbor seals will react to construction noise and 
associated activity and move away from the rock outcropping during 
construction activities (especially pile driving) is unknown. While 
seals are generally thought to be less tolerant of human activities 
than sea lions, the location of their haulout from the project site may 
be far enough away that disturbances may be less likely. Seals that are 
swimming near the project site may be harassed during construction 
activity, especially pile driving, and may swim away from the immediate 
area.

Potential Effects on Habitat

    The activity will take place on a part of the Monterey USCG pier 
that is not used directly by any marine mammal species. Short-term 
impacts of the activities are expected to result in a temporary 
reduction in utilization of the rock jetty at the end of the USCG pier 
by California sea lions and perhaps of the nearby rocky outcropping by 
Pacific harbor seals while work is in progress or until pinnipeds 
acclimate to the disturbance. This will not likely result in any 
permanent reduction in the number of sea lions or seals at these 
haulouts. Sea lions are regularly disturbed by boats and human 
activities in Monterey Harbor. In addition, approximately 4 to 5 m 
(13.2 to 16.4 ft) above the harbor seal haul-out, there is a busy bike 
path and pedestrian walkway. Seals are frequently disturbed year-round 
due to their proximity to the bike path, particularly during the 
daytime. The abandonment of either haulout is not anticipated since 
existing foot traffic, commercial and recreational boating, and human 
activity currently occurring within the area have not caused long-term 
abandonment.
    Therefore, other than the potential, short-term abandonment by 
California sea lions and harbor seals of part of their existing 
haulouts in Monterey Harbor during floating dock installation, no 
impacts on the habitat or food sources of marine mammals are likely 
from this project.

Mitigation

    Several mitigation measures to reduce the potential for harassment 
from installation of the floating dock will be implemented by USCG as 
part of their activity. General restrictions include: the work will be 
performed during daylight hours only so that potential impacts can be 
detected more easily and steps can taken to avoid them; shouting, loud 
noises, fast movements, and other activities that would disturb the 
haul-out sites will be minimized (considering human safety concerns 
foremost); the number of people and the amount of equipment on the USCG 
pier in close proximity to the sea lion haulout will be restricted to 
the minimum required to effectively perform the work; all equipment 
will be kept on the west side of the USCG pier and, as much as 
possible, out of sight of the sea lion haulout site; a NMFS-approved 
biological monitor will be on site at all times during the project 
operations to monitor marine mammal disturbances and to advise 
personnel on ways to minimize or avoid disturbances.
    General restrictions during pile driving will include: no piles 
will be driven between the hours of 5 pm and 8 am. Based on a 
recommendation from NMFS, the USCG will avoid exposing pinnipeds to 
unsafe noise levels (greater than 190 dB re 1 microPascal-m). Given the 
acoustic monitoring from pile driving exercises for the Noyo River 
Bridge, the USCG will establish an initial safety zone of 50 m (164 ft) 
around the pile-driving site. The marine mammal monitor will scan the 
safety zone continuously for 5 minutes just prior to, and during, pile 
driving to determine whether marine mammals are present. Pile driving 
will not begin until the safety zone is clear. If an animal is in the 
safety zone before initiation of the pile driving activity on any given 
work day, operations will be delayed until the animal has moved a safe 
distance away. If an animal enters the safety zone while pile driving 
is occurring, operations will be stopped immediately until the animal 
has moved beyond the range of the safety zone. In consultation with 
NMFS, the safety zone may be increased if animals beyond 50 m (164 
ft)show excessive behavioral changes in response to pile driving 
operations. If pile driving stops for less than 45 minutes, another 5-
minute scan will not be necessary; if it stops for longer than 45 
minutes, another scan will be performed.
    In order to provide further protection to pinnipeds hauled out near 
the project area, the USCG also proposes to ``dry fire'' the hammer 
prior to operating at full capacity. A ``dry fire'' occurs when the 
hammer is raised and dropped with no compression of the pistons which 
produces approximately 50 percent of the maximum in-air noise level, or 
45-55 dB (dB re 20 microPascal-meter). This dry-firing should allow 
pinnipeds in the area to voluntarily move from the area and should 
expose fewer animals to loud sounds both underwater and above water.

Monitoring

    NMFS will require USCG to monitor the impact of the floating dock 
installation activities on California sea lions and harbor seals in 
Monterey Harbor. Monitoring will be conducted by one or more NMFS-
approved monitors.
    In general, the marine mammal monitor(s) will record the date, time 
of arrival and departure of the monitor and work crew. The monitor will 
also conduct counts of sea lions on the jetty and counts of pinnipeds 
in the water near the project site every hour, commencing 1 hour before 
the start of project activity each day and ending 15 minutes after all 
project activities have ceased. Data on size classes and sex (when 
possible) of sea lions on the jetty will be collected. Counts of harbor 
seals will be obtained at the beginning and the end of each work day. 
If possible, data on size class and sex of animals will be collected. 
The monitor(s) will also collect information on disturbance reactions, 
including the number of animals disturbed, the source (including type, 
location, timing, and duration of disturbance). The monitor will also 
record environmental conditions, including date, time, cloud cover, 
visibility, wind direction and velocity, swell direction and height, 
and tides.
    During pile driving operations, the monitor will monitor the 50-
meter safety zone, as described above (see Mitigation). The safety zone 
will be marked with temporary buoys in order to facilitate monitoring 
efforts.

Reporting

    The USCG 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 California sea lions and harbor seals that may have been disturbed 
as a result of floating dock installation activities. These reports 
will include data collected during daily monitoring.
    A draft final report must be submitted to the Regional 
Administrator within 60 days after the conclusion of the project. 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.

[[Page 6119]]

Endangered Species Act (ESA)

    Under section 7 of the ESA, NMFS has begun consultation on the 
proposed issuance of an IHA for this project. Consultation will be 
concluded upon completion of the comment period and consideration of 
those comments in the final determination on issuance of an 
authorization.

National Environmental Policy Act (NEPA)

    In conjunction with the promulgation of regulations implementing 
section 101(a)(5)(D) of the MMPA, NMFS completed an Environmental 
Assessment (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 (FONSI). 
In addition, this proposed action, including pile driving, will use 
pile driving equipment that is less intense and will, therefore, have a 
lower impact on the marine environment than pile driving equipment used 
in other surveys for which EAs and resulting FONSIs have been prepared 
previously. Accordingly, this proposed action qualifies for a 
categorical exclusion under NEPA and, therefore, a new EA will not be 
prepared.

Preliminary Conclusions

    NMFS has preliminarily determined that the short-term impact of the 
floating dock installation, as described in this document and in USCG 
(2002), should result, at worst, in the temporary modification in 
behavior by California sea lions and Pacific harbor seals. 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 issue an IHA to the USCG for the potential 
harassment of small numbers of harbor seals and California sea lions 
incidental to floating dock installation, 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 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: January 31, 2003.
Laurie K. Allen,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 03-2953 Filed 2-5-03; 8:45 am]
BILLING CODE 3510-22-S