[Federal Register Volume 69, Number 13 (Wednesday, January 21, 2004)]
[Notices]
[Pages 2899-2902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1216]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 010604A]


Taking 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 
an incidental take authorization; 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 renewal of a one-year 
Incidental Harassment Authorization (IHA) to take marine mammals, by 
harassment, incidental to deepening the Dodge-Lummus Island Turning 
Basin in Miami, FL (Turning Basin) and an application for the 
promulgation of regulations governing the incidental take of marine 
mammals for the same activity over a 5-year period. Under the Marine 
Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to reissue a 1-year IHA to the Corps to incidentally take, by 
harassment, bottlenose dolphins (Tursiops truncatus) as a result of 
conducting this activity and the Corps' application for regulations.

DATES: Comments and information must be received no later than February 
20, 2004.

ADDRESSES: Comments on the application should be addressed to Michael 
Payne, 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

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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 [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.

Summary of IHA Request

    On December 1, 2003, NMFS received a request from the Corps for a 
renewal of an IHA to take bottlenose dolphins incidental to using 
blasting while deepening the Turning Basin in the Port of Miami, south 
of Dodge-Lummus Island. An IHA for this activity was issued to the 
Corps previously on May 22, 2003 (68 FR 32016, May 29, 2003). This IHA 
will expire on May 21, 2004. Since the work in the Turning Basin has 
not been started at this time, a new IHA is warranted.
    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 contract for 
dredging the Turning Basin, 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 and manatees 
(Trichechus manatus latirostris)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 within the rock substrate, 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. Because the charge 
weight and other information is not presently available, NMFS will 
require the Corps to provide this information to NMFS, including 
calculations for impact/mitigation zones (for the protection of marine 
mammals and sea turtles from injury), prior to commencing work.

Summary of Request for Regulations

    While the Corps was coordinating with NMFS on the application and 
issuance of an IHA for the Miami Turning Basin in early 2003, the Corps 
identified at least 6 additional Federal navigation projects that might 
need similar MMPA authorizations within the next few years, if confined 
blasting is used as a construction technique. To ensure consistency 
between MMPA authorizations for these dredging projects, and efficiency 
for both agencies, NMFS recommended that the Corps apply for these 
authorizations under section 101(a)(5)(A) of the MMPA, instead of 
individually under section 101(a)(5)(D) of the MMPA. This request was 
received on December 1, 2003. At this time however, only the Miami 
Turning Basin is proposed to be covered by the rulemaking. This rule, 
if implemented, and Letters of Authorization (LOA) issued under that 
rule, would replace the IHA process for this activity within the 
Jacksonville District. Each application for an LOA for another project 
within the Jacksonville District by the Corps for confined blasting 
within the District would require separate informal public review and 
comment, prior to issuance of an LOA. NMFS expects to start this 
rulemaking in early April, 2004.

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). 
These reports are available at the following location: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html.

[[Page 2901]]

    The only marine mammal species likely to be found in the Turning 
Basin are the bottlenose dolphin and West Indian manatee. Take 
authorizations for manatees are issued by the U.S. Fish and Wildlife 
Service (USFWS). There is no 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 on the 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 (central Florida 
management unit) and offshore stocks of bottlenose dolphins with a 
minimum population estimated to be 24,897 for the offshore stock. 
Abundance of the coastal stock in central Florida is 10,652 in winter, 
but unknown is summer. Additional assessment information for these two 
stocks is available at the previously mentioned URL.

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. 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).

Potential Effects on Marine Mammals

    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 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 likely to 
be most severe in near surface waters where the reflected shock wave 
creates a region of negative pressure called ``cavitation.''
    A second possible cause of 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' criteria for determining non-lethal injury (Level A 
harassment) from explosives are 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. 
NMFS has also established dual criteria for what constitutes Level B 
acoustic harassment: (1) An energy-based temporary threshold shift 
(TTS) from received sound levels 182 dB re 1 microPa\2\-sec cumulative 
energy flux in any 1/3 octave band above 100 Hz for odontocetes 
(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 distance from the mortality/serious injury zone to 
the radius where neither of these criterion is exceeded.

Mitigation and Monitoring

    In the absence of acoustic measurements (due to the high cost and 
complex instrumentation needed), in order to protect endangered, 
threatened and protected species (manatees, dolphins, sea turtles), the 
following equations have been proposed by the Corps for blasting 
projects 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 because they are based on humans, which are more 
sensitive than dolphins (humans) and on unconfined charges while the 
proposed blasts in the Turning Basin will be confined (stemmed) 
charges. The equations, based on the Navy Diver Formula, are:
    Caution Zone radius = 260 (lbs/delay)\1/3\
    Safety Zone radius = 520 (lbs/delay)\1/3\
    The Caution Zone represents the radius from the detonation beyond 
which mortality is not expected from an open-water blast. The Safety 
Zone is the approximate distance beyond which non-serious injury (Level 
A harassment) is unlikely from an open-water explosion. These zones 
will be used for implementing mitigation measures.
    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 
safety zone, a circular area around the detonation site with the 
following radius: R = 520(W)1/3 (520 times the cube root of the weight 
of the explosive charge in pounds) where: R = radius of the safety zone 
in ft; W = weight of the explosive charge in lbs).
    Although the Caution Zone 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, as is believed to be the case, monitoring this zone is 
effective. For example, 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.
    The Corps proposes to implement mitigation measures and a 
monitoring program that will establish both caution- and safety-zone 
radii to ensure that bottlenose dolphins will not be injured during 
blasting and that impacts will be at the lowest level practicable. 
Additional 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)

[[Page 2902]]

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 radius of the caution zone; 
(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, manatee, 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 Zone 
(called the watch zone). Any marine mammal(s) in the caution, safety, 
or watch zones 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 safety zone on its own volition.

Reporting

    NMFS proposes to require the Corps to submit a report of activities 
120 days before the expiration of the proposed IHA if the proposed work 
has started. This report will include the status of the work being 
undertaken, marine mammals sighted during the monitoring period, any 
behavioral observations made on bottlenose dolphins and any delays in 
detonation due to marine mammals or sea turtles being within the safety 
zone.
    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.

Endangered Species Act

    Under section 7 of the ESA, the Corps completed consultation with 
NOAA Fisheries on September 23, 2002 and with the USFWS on June 19, 
2002 for this project. Both agencies concurred with the Corps 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

    The Corps prepared an Final Environmental Impact Statement (FEIS) 
in 1989 for the Navigation Study for the Miami Harbor Channel. A copy 
of this document is available upon request (see ADDRESSES). NMFS is 
reviewing this FEIS in relation to the Corps' application and will 
determine the appropriate action to take under NEPA prior to making a 
determination on the issuance of an IHA.

Preliminary Conclusions

    NMFS has preliminarily determined that the Corps' proposed action, 
including mitigation measures to protect marine mammals, should result, 
at worst, in the temporary modification in behavior by bottlenose 
dolphins, including temporarily vacating the area to avoid the blasting 
activity and the potential for minor visual and acoustic disturbance 
from dredging and detonations. This action is expected to have a 
negligible impact on the affected species or stocks of marine mammals. 
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 described in this document.

Proposed Authorization

    NMFS proposes to reissue 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 and information 
concerning this proposed IHA and the application for regulations 
request (see ADDRESSES).

    Dated: January 14, 2004.
Donna Wieting,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 04-1216 Filed 1-20-04; 8:45 am]
BILLING CODE 3510-22-S