[Federal Register Volume 68, Number 103 (Thursday, May 29, 2003)]
[Notices]
[Pages 32016-32018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13426]


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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 issuance of an incidental harassment authorization.

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SUMMARY: In accordance with provisions of the Marine Mammal Protection 
Act (MMPA), notification is hereby given that an Incidental Harassment 
Authorization (IHA) has been issued to the U.S. Army Corps of 
Engineers-Jacksonville District (Corps) to take small numbers of 
bottlenose dolphins (Tursiops truncatus), by harassment, incidental to 
deepening the Dodge-Lummus Island Turning Basin in Miami, FL (Turning 
Basin).

DATES: This authorization is effective from May 22, 2003, through May 
22, 2004.

ADDRESSES: A copy of the application may be obtained by writing to 
Kimberly Skrupky, Office of Protected Species, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, Md 20910, or 
by telephoning the contact listed here.

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.
    NMFS has found 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 [``Level A harassment'']; 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 
[``Level B harassment''].
    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.
    On June 24, 2002, NMFS received a request from the Corps for an IHA 
to take bottlenose dolphins, by harassment, incidental to deepening the 
Turning Basin in the Port of Miami, south of Dodge-Lummus Island. The 
Corps has formulated equations for confined charges, based on the Navy 
Diver Formula, to determine zone radii for three zones:
Caution Zone Radius = 260(lbs explosives/delay)\1/3\
Safety Zone Radius = 520 (lbs explosives/delay)\1/3\
Watch Zone Radius = 3(260(lbs explosives)\\1/3)
    The Caution Zone is the radius from an open-water blast where 
mortality will not occur. Detonation will not occur if a marine mammal 
is known to be within this area. The Safety Zone is the radius from an 
open-water blast where injury will not occur. The Watch Zone is three 
times the Caution Zone where observers will conduct a watch before and 
after the detonation.
    A notice of receipt of the application and proposed authorization 
was published on February 6, 2003 (68 FR 6116). That notice described 
the activity and anticipated effects on marine mammals. NMFS received 
one comment letter from the Marine Mammal Commission (Commission) on 
the application and proposed authorization.
    Comment 1: The Commission agrees that, unless animals are close to 
the source or exposure is frequent, the actions are negligible. They 
note, however, that it would be useful if NMFS or the applicant 
conducted pre- and post- blast surveys, and monitored and mapped the 
distribution of high-intensity sound resulting from the shallow-water 
blasts.
    Response: NMFS recognizes that while acoustic measurements would be 
helpful, they too expensive relative to this single blasting project. 
Surveys will be conducted both prior to and post-blasting. A marine 
mammal watch will be conducted by no less than 2 qualified observers 
from a small watercraft at for at least 30 minutes before and after the 
time of each detonation, in the watch zone calculated for an open water 
blast.
    Comment 2: Survey data may be available concerning the numbers of 
dolphins and other marine mammals in, and their use of, the Dodge-
Lummus Island Turning Basin area. If so, they should be provided to 
NMFS. If not, NMFS may want to require that the applicant conduct such 
surveys prior to initiating the proposed activities.
    Response: The Corps provided information regarding a survey 
conducted by the NMFS, Southeast Fisheries Science Center, Miami 
Laboratory. NMFS has been conducting a photo-identification survey of 
the dolphins in Biscayne Bay since 1990. The study area encompasses an 
area of approximately 200 mi2. This study area ranged from Haulover 
Inlet south to the Card Sound Bridge behind Key Largo. The study has 
identified 159 individual animals residing in Biscayne Bay, 146 of 
which have been resighted on at least one additional time. Many of 
these animals have been sighted within or transiting through the Port 
of Miami. Population studies conducted by the Southeast Fisheries 
Science Center have found that the size of the subpopulation of 
bottlenose dolphins in Biscayne averages between 78 and 92 individuals 
(Joe Contillo, pers. com. May 5, 2003).
    Comment 3: NMFS should advise the Corps that manatees have been 
observed in this area. If there is the potential that manatees will 
also be taken incidental to the proposed activities, authorization for 
such taking would be needed from the U.S. Fish and Wildlife Service.
    Response: The Corps completed consultation with the USFWS for this 
project on June 19, 2002. The USFWS concurred with the Corps that 
activities associated with the Corps' dredging project in the D-L-I 
Turning Basin were not likely to adversely affect listed species.
    Comment 4: An across-the-board definition of temporary threshold 
shift (TTS) as constituting no more than Level B harassment 
inappropriately dismisses possible injury and biologically significant 
behavioral effects (e.g., an increased risk of natural predation or 
ship strikes) that can result from repeated TTS harassment and from the 
cumulative effects of long-term exposure. The Commission therefore 
reiterated it recommendation that TTS be considered as having the 
potential to injure marine mammals (i.e., Level A harassment).

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    Response: NMFS has addressed the concern of the definition of TTS 
in previous small take authorizations (66 FR 22450, May 4, 2001; 67 FR 
46712, July 16, 2002). These authorizations state that the best 
scientific information available supports NMFS' determination that TTS 
results in Level B harassment, rather than Level A harassment. Because 
TTS is unlikely to occur in bottlenose dolphins from this project (due 
to mitigation and monitoring discussed in this document), additional 
discussion is not warranted at this time.

Mitigation and Monitoring

    NMFS is requiring the Corps to implement mitigation measures and a 
monitoring program that will establish 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 
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 caution 
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, for at least 30 minutes 
before and 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 the watch zone. Any 
marine mammal in the caution 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 moves out of the caution zone on its own 
volition.
    In the unlikely event a marine mammal or marine turtle is injured 
or killed during blasting, the Contractor shall notify the Corps and 
the NMFS Regional Office within 48 hours. In addition, the Contractor 
will also notify the Florida Marine Patrol and the USFWS in Vero Beach.

Reporting

    The Corps anticipates completing the proposed activities within 24 
months of the start date. Therefore, NMFS is issuing a 1-year IHA with 
the possibility for renewal upon application from the Corps. NMFS 
requires 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, the Corps completed consultation with 
NMFS on September 23, 2002, and with the USFWS on June 19, 2002, for 
this project. Both agencies found that activities associated with the 
Corps' dredging project in the Dodge-Lummus Island Turning Basin were 
not likely to adversely affect listed species.

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 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, that this IHA 
will not individually or cumulatively result in a significant impact on 
the quality of the human environment as defined in 40 CFR 1508.27. 
Accordingly, this action qualifies for a categorical exemption and is 
exempted from further environmental review under NOAA Administrative 
Order 216-6.

Conclusions

    NMFS determined that the short-term impact as described in the 
proposed authorization (68 FR 6116, February 6, 2003), should result, 
at worst, in the temporary modification in behavior by bottlenose 
dolphins. Although behavioral modifications, including temporarily 
vacating the area, may be made by this species to avoid the resultant 
visual and acoustic disturbance from dredging and detonations, this 
action is expected to have a negligible impact on the affected species 
or stocks. 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.

Authorization

    NMFS has issued an IHA to the Corps for the potential harassment of 
small numbers of bottlenose dolphins incidental to deepening the 
Turning Basin in Miami, FL, provided the previously described 
mitigation, monitoring, and reporting requirements are met. NMFS has 
determined that the activity would result in the Level B harassment of 
only small numbers of bottlenose dolphins and will have no more than a 
negligible impact on this marine mammal stock.

    Dated: May 22, 2003.
Donna Wieting,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 03-13426 Filed 5-28-03; 8:45 am]
BILLING CODE 3510-22-S