[Federal Register Volume 68, Number 33 (Wednesday, February 19, 2003)]
[Notices]
[Pages 7984-7986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3989]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 012303A]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Port of Miami Construction Project (Phase II)

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 U.S. Army Corps of 
Engineers-Jacksonville District (Corps) for an Incidental Harassment 
Authorization (IHA) to take small numbers of marine mammals, by 
harassment, incidental to deepening the Dodge-Lummus Island Turning 
Basin in Miami, FL (Turning Basin) to a depth of 44 ft (13.41 m). Under 
the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on 
its proposal to issue a 1-year small take authorization, to the Corps 
to incidentally take, by harassment, small numbers of bottlenose 
dolphins (Tursiops truncatus) as a result of conducting this activity.

DATES: Comments and information must be received no later than March 
21, 2003.

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 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, NMFS, (301) 
713-2322, ext 128.

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, ncluding, 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 June 24, 2002, NMFS received a request from the Corps for an IHA 
to take bottlenose dolphins incidental to deepening the Turning Basin 
in the Port of Miami, south of Dodge-Lummus Island. The Port of Miami 
is one of the major terminal complexes in Florida. The majority of this 
tonnage is high-value general cargo transported in trailers and 
containers. The Port also accommodates a large cruise ship industry. 
Development has primarily centered on the Lummus Island terminal and 
container complex facilities. Expanding and deepening the Turning Basin 
would eliminate the need for vessels docked at Lummus Island to back to 
or from the Fisher Island Turning Basin.
    Completion of the dredging project may employ a hopper dredge, 
clamshell dredge, cutterhead dredge and/or confined blasting. The 
dredging will remove 1.4 million cubic yards of material from an area 
1,500 ft (457.2 m) in diameter. The Corps proposes to dredge the 
Turning Basin, starting in December 2002, to a maximum depth of 42 ft 
(12.8 m) plus a 2 ft (0.61 m) overdepth. Material removed from the 
dredging will be placed in the Miami Ocean Dredged Material Disposal 
Site.
    The Corps expects the contractor will employ underwater dredging 
and confined blasting to construct the project. Blasting has the 
potential to have adverse impacts on bottlenose dolphins inhabiting the 
area near the project. While the Corps does not presently have a 
blasting plan from the contractor which will specifically identify the 
number of holes that will be drilled, the amount of explosives that 
will be used for each hole, the number of blasts per day (usually no 
more than 3/day) or the number of days the construction is anticipated 
to take to complete, the Corps has forwarded to NMFS a description of a 
completed project in San Juan Harbor, Puerto Rico to use as an example. 
For that project, the maximum weight of the explosives used for each 
event was 375 lbs (170 kg) and the contractors detonated explosives 
once or twice daily from July 16 to September 9, for a total of 38 
individual detonations. Normal practice is for each charge to be placed 
approximately 5-10 ft (1.5-3 m) deep depending on how much rock needs 
to be broken and how deep a depth is sought. The charges are placed in 
the holes and tamped with rock. Therefore, if the total explosive 
weight needed is 375 lbs (170 kg) and they have 10 holes, they would 
average 37.5 lbs (17.0 kgs)/hole. However, a more likely weight for 
this project may be only 90 lbs (41 kgs) and, therefore, 9 lbs(4.1 kg)/
hole. Charge weight and other determinations are expected to be made by 
the Corps and the contractor approximately 30-60 days prior to 
commencement of the construction project. Moreover, because the charge 
weight and other information is not presently available, NMFS will 
require the Corps provide this information to NMFS, including 
calculations for impact/mitigation ranges (for the protection of marine 
mammals and sea turtles from injury), prior to commencing work.

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Description of the Marine Mammals Affected by the Activity

    General information on marine mammal species found off the East 
Coast of the United States can be found in Waring et al. (2001, 2002). 
This report is available at the following location:
    http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html.
    The only marine mammal species likely to be found in the Turning 
Basin is the bottlenose dolphin. There is not currently a stock 
assessment available concerning the status of bottlenose dolphins in 
the inshore and nearshore waters off south Florida. Additionally, while 
neither a status review nor peer-reviewed reports of status of the 
Biscayne Bay bottlenose dolphins have been published, the Southeast 
Fisheries Science Center, NMFS, is currently working on this report. 
Preliminary information indicates a documented population of 159 
bottlenose dolphins residing within the boundaries of the Biscayne Bay 
area. A total of 146 bottlenose dolphins have been resighted in the 
Port of Miami area at least one additional time. These animals were 
often sighted within or transiting through the Port of Miami. It is not 
known whether bottlenose dolphins inhabit the Turning Basin or whether 
they simply use the area as a transit to North Biscayne Bay or offshore 
via the main port channel. The defined stocks of bottlenose dolphins 
that reside closest to the project area, therefore, are the western 
North Atlantic coastal and offshore stocks of bottlenose dolphins with 
minimum populations estimated to be 2,482 for the coastal stock and 
24,897 for the offshore stock. Additional assessment information for 
these two stocks is available at the previously mentioned URL.

Potential Effects on Marine Mammals

    In general, potential impacts to marine mammals from explosive 
detonations could include both lethal and non-lethal injury, as well as 
Level B harassment. Marine mammals may be killed or injured as a result 
of an explosive detonation due to the response of air cavities in the 
body, such as the lungs and bubbles in the intestines. Effects are more 
likely to be most severe in near surface waters where the reflected 
shock wave creates a region of negative pressure called ``cavitation.''
    A second criterion for mortality is the onset of extensive lung 
hemorrhage. Extensive lung hemorrhage is considered debilitating and 
potentially fatal. Suffocation caused by lung hemorrhage is likely to 
be the major cause of marine mammal death from underwater shock waves. 
The estimated range for the onset of extensive lung hemorrhage to 
marine mammals varies depending upon the animal's weight, with the 
smallest mammals having the greatest potential hazard range.
    NMFS has established dual criteria for determining non-lethal 
injury for explosives as the peak pressure that will result in: (1) the 
onset of slight lung hemorrhage, or (2) a 50-percent probability level 
for a rupture of the tympanic membrane. These are injuries from which 
animals would be expected to recover on their own. Finally, NMFS has 
established dual criteria for Level B acoustic harassment: (1) an 
energy-based TTS criterion of 182 dB re 1 uPa\2\-sec cumulative energy 
flux in any 1/3 octave band above 100 Hz for odontocetes (and sea 
turtles) derived from experiments with bottlenose dolphins (Ridgway et 
al., 1997; Schlundt et al., 2000); and (2) 12 psi peak pressure cited 
by Ketten (1995) as associated with a safe outer limit for minimal, 
recoverable auditory trauma (i.e., TTS). The Level B Harassment zone 
therefore is the minimum distance at which neither criterion is 
exceeded.
    To protect endangered, threatened and protected species (manatees, 
dolphins, sea turtles), the following equations have been proposed by 
the Corps for this project to determine zones for injury or mortality 
from an open water explosion and to assist the Corps in establishing 
mitigation to reduce impacts to the lowest level practicable. These 
equations are believed to be conservative since they are based on 
unconfined charges and the proposed blasts in the Turning Basin will be 
confined (stemmed) charges. The equations are:
    Caution Zone radius = 260 (lbs/delay)\1/3\
    Safety Zone radius = 520 (lbs/delay)\1/3\
    The caution zone is the radius from the detonation where mortality 
(but not necessarily injury), would not occur in an open-water blast 
while the safety zone is the approximate distance where non-serious 
injury (Level A harassment) is unlikely from an open-water explosion. 
However, even though single event detonations do not result in 
behavioral response by marine mammals (see 66 FR 22450, May 3, 2001), 
there is a possibility that other Level B harassment (e.g., a temporary 
shift in hearing threshold) could occur at greater distances than 
provided by these safety zones. For that reason, an IHA is warranted.
    In the Turning Basin or any area where explosives are required to 
obtain channel design depth, marine mammal/sea turtle protection 
measures will be employed by the Corps. For each explosive charge, the 
Corps proposes that detonation will not occur if a marine mammal is 
sighted by a dedicated marine mammal/sea turtle observer within the 
caution zone, a circular area around the detonation site with the 
following radius: R = 260(W)1/3 (260 times the cube root of the weight 
of the explosive charge in pounds) where: R = radius of the danger zone 
in ft; W = weight of the explosive charge in lbs). Although the area 
described by the above equation is considered to be an area for 
potential mortality, the Corps believes that because all explosive 
charges will be stemmed (placed in a drilled hole and tamped with 
rock), the areas for potential mortality and injury will be 
significantly smaller than this area and therefore it is unlikely that 
even non-serious injury would occur if monitoring this zone is 
effective. (Since bottlenose dolphins are commonly found on the surface 
of the water, implementation of a mitigation/ monitoring program is 
expected by NMFS to be close to 100 percent effective).
    According to the Corps, bottlenose dolphins and other marine 
mammals have not been documented as being directly affected by dredging 
activities and therefore the Corps does not anticipate any incidental 
harassment of bottlenose dolphins by dredging.

Potential Effects on Habitat

    The Corps expects the effects on marine mammal habitat to be 
minimal. The bottom of the basin is rock and sand, and the walls of the 
Turning Basin are vertical rock. The Corps also believes that the area 
of the Turning Basin may not be suitable habitat for dolphins in 
Biscayne Bay, but it is more likely that the animals use the area to 
traverse to North Biscayne Bay or offshore via the main port channel. 
In addition, as a large number of fish are not expected to perish 
during the detonations, there will not be a significant effect on 
dolphins' food supply (T. Jordan, pers. comm, 2002).

Mitigation and Monitoring

    The Corps proposes to implement mitigation measures and a 
monitoring program that will establish both danger- and caution-zone 
radii to ensure that bottlenose dolphins will not be injured during 
blasting and that impacts will be at the lowest level practicable. 
Mitigation measures include: (1) confining the explosives in a hole 
with drill patterns restricted to a minimum of 8 ft (2.44 m) separation 
from any other

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loaded hole; (2) restricting the hours of detonation from 2 hours after 
sunrise to 1 hr before sunset to ensure adequate observation of marine 
mammals and sea turtles in the safety zone; (3) staggering the 
detonation for each explosive hole in order to spread the explosive's 
total overpressure over time, which in turn will reduce the danger zone 
radius; (4) capping the hole containing explosives with rock in order 
to reduce the outward potential of the blast, thereby reducing the 
chance of injuring a dolphin or sea turtle; (5) matching, to the extent 
possible, the energy needed in the ``work effort'' of the borehole to 
the rock mass to minimize excess energy vented into the water column; 
and (6) conducting a marine mammal/sea turtle watch with no less than 
two qualified observers from a small water craft and/or an elevated 
platform on the explosives barge, at least 30 minutes before and 
continue for 30 minutes after each detonation to ensure that there are 
no dolphins or sea turtles in the area at the time of detonation. The 
observer monitoring program will take place in a circular area at least 
three times the radius of the above described caution/safety zone 
(called the watch zone). Any marine mammal(s) in the danger zone or the 
watch zone will not be forced to move out of those zones by human 
intervention. Detonation shall not occur until the animal(s) move(s) 
out of the danger zone on its own volition.
    In the unlikely event a marine mammal or marine turtle is injured 
or killed during blasting, the Contractor shall immediately notify the 
NMFS Regional Office.

Reporting

    The Corps would like to have contractors complete the proposed 
activities in no more than 24 months from start date. Therefore, NMFS 
is proposing to issue a 1-year IHA with the possibility for renewal 
upon application from the Corps. NMFS proposes to require the Corps to 
submit a report of activities 120 days before the expiration of the 
proposed IHA if the Corps plans to request a renewal of its IHA, or 120 
days after the expiration of the IHA if a renewal is not being 
requested.

Endangered Species Act

    Under section 7 of the ESA, NMFS has begun consultation on the 
proposed issuance of an IHA under section 101(a)(5)(D) of the MMPA for 
this activity. Consultation will be concluded upon completion of the 
comment period and consideration of those comments prior to a 
determination on issuance of an IHA.

National Environmental Policy Act

    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 
Corps' 1989 Environmental Impact Statement and Feasibility Report for 
the Navigation Study for the Miami Harbor Channel; and the contents, 
results, and analyses of the Corps' blasting project, 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 
governing the incidental taking of marine mammals, by harassment for 
this activity 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 as 
described in this document, should result, at worst, in the temporary 
modification in behavior by bottlenose dolphins. While behavioral 
modifications, including temporarily vacating the area, may be made by 
these species to avoid the resultant visual and acoustic disturbance 
from dredging and detonations, 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 Corps for the potential 
harassment of small numbers of bottlenose dolphins incidental to 
deepening the Dodge-Lummus Island Turning Basin in Miami, FL (Turning 
Basin), 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 bottlenose dolphins and will have no more than a 
negligible impact on this marine mammal stock.

Information Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning this request (see ADDRESSES).

    Dated: February 12, 2003.
Laurie K. Allen,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 03-3989 Filed 2-18-03; 8:45 am]
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