[Federal Register Volume 68, Number 227 (Tuesday, November 25, 2003)]
[Notices]
[Pages 66076-66079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29445]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 092403A]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Seismic Retrofit of the Richmond-San Rafael Bridge, San Francisco Bay, 
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) has been issued to the California 
Department of Transportation (CALTRANS) to take small numbers of 
Pacific harbor seals and possibly California sea lions, by harassment, 
incidental to seismic retrofit construction of the Richmond-San Rafael 
Bridge (the Bridge), San Francisco Bay (SFB), CA.

DATES:  This authorization is effective from November 19, 2003 through 
November 18, 2004.

ADDRESSES:  A copy of the application may be obtained by writing to P. 
Michael Payne, Chief, Marine Mammal Conservation Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225, or by telephoning one of the 
contacts listed here.

FOR FURTHER INFORMATION CONTACT:  Kenneth R. Hollingshead, Office of 
Protected Resources, NMFS, (301) 713-2055, ext 128 or Monica DeAngelis, 
Southwest Regional Office, (562) 980-3232.

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.''
    Section 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. 
Under section 18(A), 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].

    Section 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 September 22, 2003, NMFS received a letter from CALTRANS, 
requesting reauthorization of an IHA that was first issued to it on 
December 16, 1997 (62 FR 67045, December 23, 1997), was renewed on 
January 8, 2000 (65 FR 2375, January 14, 2000), September 19, 2001 (66 
FR 49165, September 26, 2001), and September 23, 2002 (67 FR 61323, 
September 30, 2002).
    The renewed authorization request is for the possible harassment of 
small numbers of Pacific harbor seals (Phoca vitulina) and possibly 
some California sea lions (Zalophus californianus), incidental to 
seismic retrofit construction of the Bridge.
    The Bridge is being seismically retrofitted to withstand a future 
severe earthquake. Construction is scheduled to extend until the year 
2005. A detailed description of the work planned is contained in the 
Final Natural Environmental Study/Biological Assessment for the 
Richmond-San Rafael Bridge Seismic Retrofit Project (CALTRANS, 1996). 
Among other things, seismic retrofit work will include excavation 
around pier bases, hydro-jet cleaning, installation of steel casings 
around the piers with a crane, installation of micro-piles, and 
installation of precast concrete jackets. Foundation construction will 
require approximately 2 months per pier, with construction occurring on 
more than one pier at a time. In addition to pier retrofit, 
superstructure construction and tower retrofit work will also be 
carried out. Because seismic retrofit construction between piers 52 and 
57 has the potential to disturb harbor seals hauled out on Castro 
Rocks, an IHA is warranted. The duration for the seismic retrofit of 
foundation and towers on piers 52 through 57, which began this year, 
will take approximately 7 to 8 months to complete.

Comments and Responses

    A notice of receipt of the application and proposed authorization 
was published on October 3, 2003 (68 FR

[[Page 66077]]

57430), and a 30-day public comment period was provided on the 
application and proposed authorization. No comments were received on 
this IHA application and proposed authorization.

Description of Habitat and Marine Mammals Affected by the Activity

    A description of SFB ecosystem and its associated marine mammals 
can be found in the original CALTRANS application (CALTRANS 1997) and 
in CALTRANS (1996). Castro Rocks are a small chain of rocky islands 
located next to the Bridge and approximately 1500 ft (460 m) north of 
the Chevron Long Wharf. They extend in a southwesterly direction for 
approximately 800 ft (240 m) from pier 55. The rocks start at about 55 
ft (17 m) from pier 55 (A rock) and end at approximately 250 ft (76 m) 
from pier 53 (F rock). The chain of rocks is exposed during low tides 
and inundated during high tide.

Marine Mammals

    General information on harbor seals and other marine mammal species 
found in Central California waters can be found in Caretta et al. 
(2002, 2001), which are available at the following URL: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment--Program/sars.html. 
Please refer to these documents for information on these species. The 
marine mammals likely to be affected by work in the Bridge area are 
limited to harbor seals and California sea lions.
    The harbor seal is the only marine mammal species expected to be 
found regularly in the Bridge area. A detailed description of harbor 
seals was provided in the 1997 notification of proposed authorization 
(62 FR 46480, September 3, 1997) with corrections and clarifications 
provided in the notice of IHA issuance (62 FR 67045, December 23, 
1997). This information is not repeated here, but may be found in the 
Federal Register notices mentioned previously in this document.
    We note here however, that pups are born in mid- to late-March, 
peak numbers of pups are observed in early May, and, by the first week 
in June, all pups are weaned (Kopec and Harvey, 1995). Estimated pup 
counts at Castro Rocks were 35 in 1999, 40 in 2000 and 40 in 2001 (A. 
Bohorquez pers. comm in Green et al., 2001). This represents 
approximately 22-24 percent of the pups born in SFB.
    The California sea lion primarily uses the Central SFB area to 
feed. California sea lions are periodically observed at Castro Rocks. 
No pupping or regular haulouts occur in the project area.

Potential Effects on Marine Mammals

    The impact to the harbor seals and California sea lions is expected 
to be disturbance by the presence of workers, construction noise, and 
construction vessel traffic. Disturbance from these activities is 
expected to have only a short-term negligible impact to a small number 
of harbor seals and sea lions. These disturbances will be reduced to 
the lowest level practicable by implementation of the proposed work 
restrictions and mitigation measures (see Mitigation).
    Marine mammal monitoring under previous IHAs has been conducted at 
Castro Rocks and at two ``control'' haul-out locations in SFB, Mowry 
Slough and Yerba Buena Island (Green et al., 2001, 2002) since 1998. To 
date, over 10,000 hours of observations have been conducted at these 
sites with two-thirds of those hours at Castro Rocks. While 
disturbances can consist of head alerts, approaches to the water, and 
flushes into the water, only the latter behavior is considered by NMFS 
to be Level B harassment. At Castro Rocks, of all flush disturbances 
monitored during the day, the major harassment sources were watercraft 
(e.g. motorboats, sailboats, tankers, kayaks and jet skis) with 0.128 
disturbances per hour of field time (d/hr); wildlife (seals and birds) 
with 0.075 d/hr; anthropogenic (debris, workmen on bridge with 0.040 d/
hr; and ``research'' with 0.021 d/hr. Construction activities resulted 
in 0.0165 d/hr. There were fewer flushes observed at night. For more 
detailed information on the extent of take by harassment at Castro 
Rocks by activities other than the requested authorization, please 
refer to Green et al. (2002).
    During the Work Period (August 1 through February 14), the 
incidental harassment of harbor seals and, on rare occasions, 
California sea lions is expected to occur on a daily basis upon 
initiation of the retrofit work. In addition, the number of seals 
disturbed will vary daily depending upon tidal elevations. Monitoring 
by Green et al. (2002) indicates that although overall seal numbers 
each month of the year are not significantly different across years, 
there are differences in subsite use by seals at Castro Rocks during 
both the daytime and nighttime. For example, the average number of 
seals hauled out on Castro Rocks (rocks A and C) during the fall of 
2001 (when construction activity was taking place within the area of 
the haul-out site) was significantly different than the average number 
of seals hauled out on Castro Rocks during 1998-2000, prior to the 
construction period. It was noted that fewer seals were using rock A, 
located closest to the Bridge and more seals were hauling out on rock C 
which was located farther from the Bridge than rock A. The number of 
seals hauled out on rocks B and E was not significantly different 
between years while the number hauled out on rocks D and F was greater 
during the fall of 2000 and 2001 than 1998 and 1999. For a more 
detailed discussion on the distribution of harbor seals during the work 
and non-work periods and levels of impact by various natural and 
anthropogenic disturbance sources, please see Green et al. (2002) which 
is available upon request (see ADDRESSES).
    Although California sea lions have been shown to react to pile 
driving noise by porpoising quickly away from the site (SRS 
Technologies, 2001), it is not known whether they will react to general 
construction noise and move away from the rocks during construction 
activities. However, sea lions are generally thought to be more 
tolerant of human activities than harbor seals and are, therefore, less 
likely to be affected.

Potential Effects on Habitat

    Short-term impacts of the activities are expected to result in a 
temporary reduction in utilization of the Castro Rocks haulout site 
while work is in progress or until seals acclimate to the disturbance. 
This will not likely result in any permanent reduction in the number of 
seals at Castro Rocks. The abandonment of Castro Rocks as a harbor seal 
haulout and rookery is not anticipated since existing traffic noise 
from the Bridge, commercial activities at the Chevron Long Wharf used 
for off-loading crude oil, and considerable recreational boating and 
commercial shipping that currently occur within the area have not 
caused long-term abandonment. In addition, mitigation measures and work 
restrictions are designed to preclude abandonment.
    Therefore, as described in detail in CALTRANS (1996), other than 
the potential short-term abandonment by harbor seals of part or all of 
Castro Rocks during retrofit construction, no impact on the habitat or 
food sources of marine mammals are likely from this construction 
project.

Mitigation

    Several mitigation measures to reduce the potential for general 
noise have been implemented by CALTRANS as part of their activity. 
General restrictions include: with the exception of the Concrete 
Trestle Section, no piles will be driven (i.e., no repetitive pounding 
of piles) on the Bridge between 9 p.m. and 7 a.m.; an imposition of a 
construction noise limit of 86 dBA at 50 ft (15 m)

[[Page 66078]]

between 9 p.m. and 7 a.m.; and a limitation on construction noise 
levels for 24 hrs/day in the vicinity of Castro Rocks during the 
pupping/molting restriction period.
    To minimize harassment of marine mammals, previous authorizations 
(1997-2001) required CALTRANS to comply with the following mitigation 
measures: (1) A February 15 through July 31 restriction on work in the 
water south of the Bridge center line and retrofit work on the Bridge 
substructure, towers, superstructure, piers, and pilings from piers 52 
through 57; (2) no watercraft will be deployed by CALTRANS employees or 
contractors, during the year within the exclusion zone located between 
piers 52 and 57, except for when construction equipment is required for 
seismic retrofitting of piers 52 through 57; and (3) minimize vessel 
traffic to the greatest extent practicable in the exclusion zone when 
conducting construction activities between piers 52 and 57. From 1997 
through September 2002, the boundary of the exclusion zone was 
rectangular in shape (1700 ft (518 m) by 800 ft (244 m)), completely 
enclosing Castro Rocks and piers 52 through 57, inclusive. The northern 
boundary of the exclusion zone was located 300 ft (91 m) from the most 
northern tip of Castro Rocks, and the southern boundary was located 300 
ft (91 m) from the most southern tip of Castro Rocks. The eastern 
boundary was located 300 ft (91 m) from the most eastern tip of Castro 
Rocks, and the western boundary was located 300 ft (91 m) from the most 
western tip of Castro Rocks. The exclusion zone is restricted as a 
controlled access area and is marked off with buoys and warning signs 
for the entire year.
    In 2002 (see 67 FR 61323, September 30, 2002), NMFS modified the 
Work/Boat Exclusion Zone (W/BEZ) so that the eastern boundary was 
shifted from 100 ft (30.5 m) east of Pier 57 to 100 ft (30.5 m) west of 
Pier 57. This maintains a 400-ft (122-m) ``buffer'' as opposed to the 
previous 600-ft (183-m) buffer, between the work at Pier 57 and ``A'' 
rock. This modification is reasonable based on observed seal behavior 
during the construction within the W/BEZ that harbor seals adjusted 
their location preference on Castro Rocks by moving westerly to rocks 
further from the construction (see discussion previously in this 
document). However, CALTRANS notes that there has not been a 
statistically significant change in the total numbers of animals that 
utilize the Castro Rocks haulout.
    In addition to shifting the W/BEZ, in 2002, NMFS modified the Work 
Period in the vicinity of Castro Rocks from February 15th to March 1st. 
CALTRANS requested this modification due to unforseen circumstances 
affecting the ability of the contractor to conduct the seismic retrofit 
work on Pier 57. This modification allows the contractor to complete 
the work this coming season and to stay under budget. The previous Work 
Closure Period (February 15-July 31) was designed to encompass the 
entire harbor seals pupping and breeding seasons and nearly the entire 
molting season at Castro Rocks. Thus, the Work Closure Period included 
the entire pupping season at Castro Rocks and a substantial pre-pupping 
period when females are moving into pupping areas (see 62 FR 67045, 
December 23, 1997). Because moving the Work Closure Period from 
February 15th to March 1st still provides a 2-week window prior to the 
onset of successful pupping (March 15th), and because NMFS did not find 
scientific evidence indicating that female harbor seals need a ``quiet 
period'' from general noise in order to pup successfully, NMFS 
determined that shifting the Work Closure Period from February 15th to 
March 1st would not have a significant impact on harbor seal pupping.
    In 2002, NMFS also modified the period in which work is allowed to 
start in the vicinity of Castro Rocks from August 1st to a new date of 
July 16\th\. As mentioned in previous documents, newborn harbor seal 
pups are able to swim immediately after birth (Zeiner et al., 1990) and 
pups are weaned by the first week of June. Therefore, terminating the 
Work Closure Period on July 16th is not expected to affect pup 
survival. Under authorizations issued prior to the current IHA, the 
July 31\st\ ending date for the Work Closure Period was established to 
protect harbor seals during the molting season. However, those 
documents also noted that NMFS believed that it is likely that harbor 
seals evolved adaptive mechanisms to deal with exposure to the water 
during the molt. For example, on some harbor seal haul-outs (such as 
Castro Rocks) during the molting season seals must enter the water once 
or even twice a day due to tidal fluctuations limiting access to the 
haul-out. Also, since harbor seals lose hair in patches during the 
molt, they are never completely hairless and would not be as vulnerable 
to heat loss in the water during this period compared to other seals 
(e.g., elephant seals) that lose their all their hair at one time. 
Finally, NMFS notes that if the levels of harbor seal disturbance 
during the molt are relatively high, seals are likely to utilize other 
local haul-out sites during the molt (DeLong, R., pers. commun. 1997; 
Hanan, D., pers. commun. 1997; Harvey, J., pers. commun. 1997). Hanan 
(1996) found that although harbor seals tagged at an isolated southern 
California haul-out tended to exhibit site-fidelity during the molt, 
some seals were observed molting at other nearby haul-outs. Based on 
these reasons therefore, NMFS determined that terminating the Closure 
Period on July 16th would not significantly affect harbor seals in 
general or molting seals at Castro Rocks in particular.

Monitoring

    NMFS will require CALTRANS to continue to monitor the impact of 
seismic retrofit construction activities on harbor seals at Castro 
Rocks. Monitoring will be conducted by one or more NMFS-approved 
monitors. CALTRANS is to monitor at least one additional harbor seal 
haulout within San Francisco Bay to evaluate whether harbor seals use 
alternative haulout areas as a result of seismic retrofit disturbance 
at Castro Rocks.
    The monitoring protocol will be divided into the Work Period Phase 
(July 16 through February 28) and the Work Closure Period Phase (March 
1 through July 15). During the Work Period Phase and Work Closure 
Period Phase, the monitor(s) will conduct observations of seal behavior 
at least 3 days/week for approximately one tidal cycle each day at 
Castro Rocks. The following data will be recorded: (1) Number of seals 
and sea lions on site; (2) date; (3) time; (4) tidal height; (5) number 
of adults, subadults, and pups; (6) number of individuals with red 
pelage; (7) number of females and males; (8) number of molting seals; 
and (9) details of any observed disturbances. Concurrently, the 
monitor(s) will record general construction activity, location, 
duration, and noise levels. At least 2 nights/week, the monitor will 
conduct a harbor seal census after midnight at Castro Rocks. In 
addition, during the Work Period Phase and prior to any construction 
between piers 52 and 57, inclusive, the monitor(s) will conduct 
baseline observations of seal behavior at Castro Rocks and at the 
alternative site(s) once a day for a period of 5 consecutive days 
immediately before the initiation of construction in the area to 
establish pre-construction behavioral patterns. During the Work Period 
and Work Closure Period Phases, the monitor(s) will conduct 
observations of seal behavior, and collect appropriate data, at the 
alternative Bay harbor seal haulout at least 3 days/week (Work Period) 
and 2 days/week (Work Closure Period), during a low tide.

[[Page 66079]]

    In addition, NMFS will require that, immediately following the 
completion of the seismic retrofit construction of the Bridge, the 
monitor(s) will conduct observations of seal behavior, at Castro Rocks, 
at least 5 days/week for approximately 1 tidal cycle (high tide to high 
tide) each day, for one week/month during the months of April, July, 
October, and January. At least 2 nights/week during this same period, 
the monitor will conduct an additional harbor seal census after 
midnight.

Reporting

    Under previous IHAs, CALTRANS has provided monitoring reports 
(Green et al. (2001, 2002). The findings from these reports have been 
summarized previously in this document.
    CALTRANS 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 harbor seals that may have been disturbed as a result of seismic 
retrofit construction activities. These reports will provide dates, 
time, tidal height, maximum number of harbor seals ashore, number of 
adults, sub-adults and pups, number of females/males, number of harbor 
seals with a red pelage, and any observed disturbances. A description 
of retrofit activities at the time of observation and any sound 
pressure levels measurements made at the haulout will also be provided. 
A draft interim report must be submitted to NMFS by April 30, 2004.
    A draft final report must be submitted to the Regional 
Administrator within 90 days after the expiration of this IHA. 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.
    CALTRANS will provide NMFS with a follow-up report on the post-
construction monitoring activities within 18 months of project 
completion in order to evaluate whether haulout patterns are similar to 
the pre-retrofit haul-out patterns at Castro Rocks.

National Environmental Policy Act

    NMFS prepared an Environmental Assessment (EA) in 1997 that 
concluded that the impacts of CALTRANS' seismic retrofit construction 
of the Richmond-San Rafael Bridge will not have a significant impact on 
the human environment. A copy of that EA, which includes the Finding of 
No Significant Impact (FONSI) is available upon request (see 
ADDRESSES). This action has not changed significantly from the action 
analyzed in the 1997 EA. Therefore, this proposed action is not 
expected to change the analysis or conclusion of the 1997 EA.

Endangered Species Act (ESA)

    On January 27, 1997, NMFS completed consultation under section 7 of 
the ESA with the Federal Highway Administration (FHWA) on the CALTRANS' 
proposed seismic retrofit work on the Richmond-San Rafael Bridge. That 
consultation concluded that the project is not likely to adversely 
affect winter-run chinook salmon. However, issuance of this IHA to 
CALTRANS constitutes an agency action that authorizes an activity that 
may affect ESA-listed species and, therefore, is subject to section 7 
of the ESA. Moreover, because the underlying action has not changed 
from that considered in the consultation, NMFS has determined that 
issuance of an IHA does not lead to any effects to listed species apart 
from those that were considered in the consultation on FHWA's action.

Conclusions

    NMFS has determined that the short-term impact of the seismic 
retrofit construction of the Bridge should result, at worst, in the 
temporary modification in behavior by harbor seals and, possibly, by 
some California sea lions. 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.

Authorization

    For the reasons previously discussed, NMFS has issued an IHA for a 
1-year period, for the incidental harassment of harbor seals and 
California sea lions by the seismic retrofit of the Richmond-San Rafael 
Bridge, San Francisco Bay, CA, provided the above mentioned mitigation, 
monitoring and reporting requirements are incorporated.

    Dated: November 19, 2003.
Laurie K. Allen,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 03-29445 Filed 11-24-03; 8:45 am]
BILLING CODE 3510-22-S