[Federal Register Volume 70, Number 8 (Wednesday, January 12, 2005)]
[Notices]
[Pages 2123-2127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-624]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 092704B]


Taking of Marine Mammals Incidental to Specified Activities; 
Construction of the East Span of the San Francisco-Oakland Bay Bridge

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 
California sea lions, Pacific harbor seals, and gray whales, by 
harassment, incidental to construction of a replacement bridge for the 
East Span of the San Francisco-Oakland Bay Bridge (SF-OBB) in 
California.

DATES: This authorization is effective from January 3, 2005, until 
January 3, 2006.

ADDRESSES: A copy of the application, IHA, and/or a list of references 
used in this document may be obtained by writing to Steve Leathery, 
Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315

[[Page 2124]]

East-West Highway, Silver Spring, MD 20910-3225.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, NMFS, (301) 713-
2289, ext 128, or Monica DeAngelis, NMFS, (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. 
Except with respect to certain activities not pertinent here, 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 1, 2004, NMFS received a request from CALTRANS 
requesting renewal of an IHA for the possible harassment of small 
numbers of California sea lions (Zalophus californianus), Pacific 
harbor seals (Phoca vitulina richardsii), and gray whales (Eschrichtius 
robustus) incidental to construction of a replacement bridge for the 
East Span of the SF-OBB, in San Francisco Bay (SFB or the Bay), 
California. An IHA was issued to CALTRANS for this activity on November 
9, 2003, and expired on November 9, 2004. Background information on the 
issuance of this IHA was published in the Federal Register on November 
14, 2003 (68 FR 64595). Minor modifications to the IHA were made on 
June 28, 2004 in response to a request by CALTRANS. These modifications 
were limited to clarifications of, and corrections on, the terminology 
and conditions in the IHA.
    A detailed description of the SF-OBB project was provided in the 
November 14, 2003 (68 FR 64595), Federal Register notice and is not 
repeated here.

Comments and Responses

    A notice of receipt and request for 30-day public comment on the 
application and proposed authorization was published on October 20, 
2004 (69 FR 61652). During the 30-day public comment period, no 
comments were received on this action.

Description of the Marine Mammals Potentially Affected by the Activity

    General information on the marine mammal species found in 
California waters can be found in Caretta et al. (2004), which is 
available at the following URL: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html. Refer to that document for 
information on these species.
    The marine mammals most likely to be found in the SF-OBB area are 
the California sea lion and Pacific harbor seal. From December through 
May gray whales may also be present in the SF-OBB area. Information on 
these 3 species was provided in the November 14, 2003 (68 FR 64595), 
Federal Register notice and is not repeated here.

Potential Effects on Marine Mammals and Their Habitat

    CALTRANS and NMFS have determined that open-water pile driving, as 
outlined in the project description, has the potential to result in 
behavioral harassment of California sea lions, Pacific harbor seals, 
and gray whales that may be swimming, foraging, or resting in the 
project vicinity while pile driving is being conducted. Pile driving 
could potentially harass those few pinnipeds that are in the water 
close to the project site, whether their heads are above or below the 
surface.
    Based on airborne noise levels measured and on-site monitoring 
conducted during 2004 under the current IHA, noise levels from the East 
Span project are not resulting in the harassment of harbor seals hauled 
out on Yerba Buena Island. Also, noise levels from the East Span 
project are not expected to result in harassment of the sea lions 
hauled out at Pier 39 as airborne and waterborne sound pressure levels 
(SPLs) would attenuate to below harassment levels by the time they 
reach that haul-out site, 5.7 kilometers (3.5 miles) from the project 
site.
    For reasons provided in greater detail in NMFS' November 14, 2003 
(68 FR 64595) Federal Register notice and in CALTRANS' June 2004 annual 
monitoring report, the East Span Project is resulting in only small 
numbers of pinnipeds being harassed (through June 2004, the biological 
observers indicated that no pinnipeds had been harassed as a result of 
East Span construction) and, therefore, is not expected to result in 
more than a negligible impact on marine mammal stocks and will not have 
a significant impact on their habitat. Short-term impacts to habitat 
may include minimal disturbance of the sediment where the channels are 
dredged for barge access and where individual bridge piers are 
constructed. Long-term impacts to marine mammal habitat will be limited 
to the footprint of the piles and the obstruction they will create 
following installation. However, this impact is not considered 
significant as the marine mammals can easily swim around the piles of 
the new bridge, as they currently swim around the existing bridge 
piers.

Mitigation

    The following mitigation measures are currently required under the 
IHA to reduce impacts to marine mammals to the lowest extent 
practicable. NMFS is requiring these mitigation measures to be carried 
out under the new IHA.

Barrier Systems

    An air bubble curtain system is required to be used only when 
driving the permanent open-water piles. While the bubble curtain is 
required specifically as a method to reduce impacts to endangered and 
threatened fish species in SFB, it may also provide some benefit for 
marine mammals. The NMFS' Biological Opinion and the California 
Department of Fish and

[[Page 2125]]

Game's (CDFG) 2081 Incidental Take Permit also allow for the use of 
other equally effective methods, such as cofferdams, as an alternative 
to the air bubble curtain system to attenuate the effects of sound 
pressure waves on fish during driving of permanent in-Bay piles (NMFS 
2001; CDFG, 2001). Piers E-16 through E-7 for both the eastbound and 
westbound structures of the Skyway will be surrounded by sheet-pile 
cofferdams, which will be de-watered before the start of pile driving. 
De-watered cofferdams are generally effective sound attenuation 
devices. For Piers E3 through E6 of the Skyway and Piers 1 and E2 of 
the Self-Anchored Suspension span, it is anticipated that cofferdams 
will not be used: therefore, a bubble curtain will surround the piles.

Sound Attenuation

    As a result of the determinations made during the Pile Installation 
Demonstration Project (PIDP) restrike and the investigation at the 
Benicia-Martinez Bridge, NMFS determined in 2003 that CALTRANS must 
install an air bubble curtain for pile driving for the open-water piles 
without cofferdams located at the SF-OBB. This air bubble curtain 
system consists of concentric layers of perforated aeration pipes 
stacked vertically and spaced no more than five vertical meters apart 
in all tide conditions. The minimum number of layers must be in 
accordance with water depth at the subject pile: 0-<5 m = 2 layers 
(1263 cfm); 5-<10 m = 4 layers (2526 cfm), 10-<15 m = 7 layers (4420 
cfm); 15-<20 m = 10 layers (6314 cfm); 20-<25 m= 13 layers (8208 cfm). 
The lowest layer of perforated aeration pipes must be designed to 
ensure contact at all times and tidal conditions with the mudline 
without sinking into the bay mud. Pipes in any layer must be arranged 
in a geometric pattern, which will allow for the pile driving operation 
to be completely enclosed by bubbles for the full depth of the water 
column.
    To provide a uniform bubble flux, each aeration pipe must have four 
adjacent rows of air holes along the pipe. Air holes must be 1.6-mm 
diameter and spaced approximately 20 mm apart. The bubble curtain 
system will provide a bubble flux of at least two cubic meters per 
minute, per linear meter of pipeline in each layer. Air holes must be 
placed in 4 adjacent rows.
    The air bubble curtain system must be composed of the following: 
(1) an air compressor(s), (2) supply lines to deliver the air, (3) 
distribution manifolds or headers, (4) perforated aeration pipes, and 
(5) a frame. The frame facilitates transport and placement of the 
system, keeps the aeration pipes stable, and provides ballast to 
counteract the buoyancy of the aeration pipes in operation. Meters are 
required to monitor the operation of the bubble curtain system. 
Pressure meters will be installed and monitored at all inlets to 
aeration pipelines and at points of lowest pressure in each branch of 
the aeration pipeline. If the pressure or flow rate in any meter falls 
below 90 percent of its operating value, the contractor will cease pile 
driving operations until the problem is corrected and the system is 
tested to the satisfaction of the CALTRANS resident engineer.

Establishment of Safety/Buffer Zones

    A safety zone is to be established and monitored to include all 
areas where the underwater SPLs are anticipated to equal or exceed 190 
dB re 1 mPa RMS (impulse) for pinnipeds. Also, a 180-dB re 1 mPa RMS 
(impulse) safety zone for gray whales must be established for pile 
driving occurring during the gray whale migration season from December 
through May. Prior to commencement of any pile driving, a preliminary 
500-m (1,640-ft) radius safety zone for pinnipeds (California sea lions 
and Pacific harbor seals) will be established around the pile driving 
site, as it was for the PIDP. Once pile driving begins, either new 
safety zones can be established for the 500 kJ and 1700 kJ hammers or 
the 500 m (1,640 ft) safety zone can be retained. If new safety zones 
are established based on SPL measurements, NMFS requires that each new 
safety zone be based on the most conservative measurement (i.e., the 
largest safety zone configuration). SPLs will be recorded at the 500-m 
(1,640-ft) contour. The safety zone radius for pinnipeds will then be 
enlarged or reduced, depending on the actual recorded SPLs.
    Observers on boats will survey the safety zone to ensure that no 
marine mammals are seen within the zone before pile driving of a pile 
segment begins. If marine mammals are found within the safety zone, 
pile driving of the segment will be delayed until they move out of the 
area. If a marine mammal is seen above water and then dives below, the 
contractor will wait at least 15 minutes, and if no marine mammals are 
seen by the observer in that time it may be assumed that the animal has 
moved beyond the safety zone. This 15-minute criterion is based on 
scientific evidence that harbor seals in SFB dive for a mean time of 
0.50 minutes to 3.33 minutes (Harvey and Torok, 1994). However, due to 
the limitations of monitoring from a boat, there can be no assurance 
that the zone will be devoid of all marine mammals at all times.
    Once the pile driving of a segment begins it cannot be stopped 
until that segment has reached its predetermined depth due to the 
nature of the sediments underlying the Bay. If pile driving stops and 
then resumes, it would potentially have to occur for a longer time and 
at increased energy levels. In sum, this would simply amplify impacts 
to marine mammals, as they would endure potentially higher SPLs for 
longer periods of time. Pile segment lengths and wall thickness have 
been specially designed so that when work is stopped between segments 
(but not during a single segment), the pile tip is never resting in 
highly resistant sediment layers. Therefore, because of this 
operational situation, if seals or sea lions enter the safety zone 
after pile driving of a segment has begun, pile driving will continue 
and marine mammal observers will monitor and record marine mammal 
numbers and behavior. However, if pile driving of a segment ceases for 
30 minutes or more and a marine mammal is sighted within the designated 
safety zone prior to commencement of pile driving, the observer(s) must 
notify the Resident Engineer (or other authorized individual) 
immediately and follow the mitigation requirements as outlined 
previously in this document.

Soft Start

    Although marine mammals will be protected from Level A harassment 
by establishment of an air-bubble curtain and marine mammal observers 
monitoring a 190-dB safety zone for pinipeds and 180-dB safety zone for 
gray whales, mitigation may not be 100 percent effective at all times 
in locating marine mammals. Therefore, in order to provide additional 
protection to marine mammals near the project area by allowing marine 
mammals to vacate the area prior to receiving a potential injury, 
CALTRANS will also ``soft start'' the hammer prior to operating at full 
capacity. CALTRANS typically implements a ``soft start'' with several 
initial hammer strikes at less than full capacity (i.e., approximately 
40-60 percent energy levels) with no less than a 1- minute interval 
between each strike. Similar levels of noise reduction are expected 
underwater. Therefore, the contractor will initiate hammering of both 
the 500-kJ and the 1,700-kJ hammers with this procedure in order to 
allow pinnipeds in the area to voluntarily move from the area which 
should expose fewer animals to loud sounds both underwater and above 
water noise. This would also ensure that

[[Page 2126]]

any pinnipeds that are missed during safety zone monitoring will not be 
injured.

Compliance with Equipment Noise Standards

    To mitigate noise levels and, therefore, impacts to California sea 
lions, Pacific harbor seals, and gray whales, all construction 
equipment will comply as much as possible with applicable equipment 
noise standards of the U.S. Environmental Protection Agency, and all 
construction equipment will have noise control devices no less 
effective than those provided on the original equipment.

Monitoring

    Since the start of the large-diameter pile driving in the Bay 
nearly two years ago, CALTRANS has completed pile driving of 105 piles 
inside cofferdams and 39 piles in open water (with the use of a bubble 
curtain) for a total of 144 piles. Monitoring teams were on-site for 
all open water pile driving and during driving of ``tops'' (last 
section of the piles, which drives the pile deeper into the substrate) 
inside cofferdams where underwater SPLs reached 190 dB or greater. 
During 76 days of monitoring, both within and outside the marine mammal 
safety zone, a single startle behavior from a California sea lion was 
observed.
    The following monitoring measures are required under the IHA to 
reduce impacts to marine mammals to the lowest extent practicable.

Visual Oservations

    The area-wide baseline monitoring and the aerial photo survey to 
estimate the fraction of pinnipeds that might be missed by visual 
monitoring have been completed under the current IHA and do not need to 
be continued.
    Safety zone monitoring will be conducted during driving of all 
open-water, permanent piles without cofferdams and with cofferdams when 
underwater SPLs reach 190 dB RMS or greater. Monitoring of the pinniped 
and cetacean safety zones will be conducted by a minimum of three 
qualified NMFS-approved observers for each safety zone. One three-
observer team will be required for the safety zones around each pile 
driving site, so that multiple teams will be required if pile driving 
is occurring at multiple locations at the same time. The observers will 
begin monitoring at least 30 minutes prior to startup of the pile 
driving. Observers will most likely conduct the monitoring from small 
boats, as observations from a higher vantage point (such as the SF-OBB) 
is not practical. Pile driving will not begin until the safety zone is 
clear of marine mammals. However, as described in the Mitigation 
section, once pile driving of a segment begins, operations will 
continue uninterrupted until the segment has reached its predetermined 
depth. However, if pile driving of a segment ceases for 30 minutes or 
more and a marine mammal is sighted within the designated safety zone 
prior to commencement of pile driving, the observer(s) must notify the 
Resident Engineer (or other authorized individual) immediately and 
follow the mitigation requirements as outlined previously (see 
Mitigation). Monitoring will continue through the pile driving period 
and will end approximately 30 minutes after pile driving has been 
completed. When necessary, biological observations will be made using 
binoculars during daylight hours.
    In addition to monitoring from boats, during open-water pile 
driving, monitoring at one control site (harbor seal haul-out sites and 
the waters surrounding such sites not impacted by the East Span 
Project's pile driving activities, i.e., Mowry Slough) will be 
designated and monitored for comparison. Monitoring will be conducted 
twice a week at the control site whenever open-water pile driving is 
being conducted. Data on all observations will be recorded and will 
include items such as species, numbers, behavior, details of any 
observed disturbances, time of observation, location, and weather. The 
reactions of marine mammals will be recorded based on the following 
classifications that are consistent with the Richmond Bridge Harbor 
Seal survey methodology (for information on the Richmond Bridge 
authorization, see 68 FR 66076, November 25, 2003): (1) No response, 
(2) head alert (looks toward the source of disturbance), (3) approach 
water (but not leave), and (4) flush (leaves haul-out site). The number 
of marine mammals under each disturbance reaction will be recorded, as 
well as the time when seals re-haul after a flush.

Acoustical Observations

    Airborne noise level measurements have been completed and 
underwater environmental noise levels will continue to be measured as 
part of the East Span Project. The purpose of the underwater sound 
monitoring is to establish the safety zone of 190 dB re 1 micro-Pa RMS 
(impulse) for pinnipeds and the safety zone of 180 dB re 1 micro-Pa RMS 
(impulse) for gray whales. Monitoring will be conducted during the 
driving of the last half (deepest pile segment) for any given open-
water pile. One pile in every other pair of pier groups will be 
monitored. One reference location will be established at a distance of 
100 m (328 ft) from the pile driving. Sound measurements will be taken 
at the reference location at two depths (a depth near the mid-water 
column and a depth near the bottom of the water column but at least 1 m 
(3 ft) above the bottom) during the driving of the last half (deepest 
pile segment) for any given pile. Two additional in-water spot 
measurements will be conducted at appropriate depths (near mid water 
column), generally 500 m (1,640 ft) in two directions (either west, 
east, south or north) of the pile driving site and at the same two 
depths as the reference location measurements. In cases where such 
measurements cannot be obtained due to obstruction by land mass, 
structures or navigational hazards, measurements will be conducted at 
alternate spot measurement locations. Measurements will be made at 
other locations either nearer or farther as necessary to establish the 
approximate distance for the safety zones. Each measuring system shall 
consist of a hydrophone with an appropriate signal conditioning 
connected to a sound level meter and an instrument grade digital 
audiotape recorder. Overall SPLs shall be measured and reported in the 
field in dB re 1 micro-Pa RMS (impulse). An infrared range finder will 
be used to determine distance from the monitoring location to the pile. 
The recorded data will be analyzed to determine the amplitude, time 
history and frequency content of the impulse.

Reporting

    Under the previous IHA, CALTRANS submitted weekly marine mammal 
monitoring reports and in June, 2004, CALTRANS submitted its Marine 
Mammal and Acoustic Monitoring for the Eastbound Structure. This annual 
report is available by contacting NMFS (see ADDRESSES) or on the Web at 
http://biomitigation.org.
    Under the 2005 IHA, coordination with NMFS will occur on a weekly 
basis, or more often as necessary. During periods with open-water pile 
driving activity, weekly monitoring reports will be made available to 
NMFS and the public at http://biomitigation.org. These weekly reports 
will include a summary of the previous week's monitoring activities and 
an estimate of the number of seals and sea lions that may have been 
disturbed as a result of pile driving activities.
    In addition, CALTRANS will provide NMFS' Southwest Regional 
Administrator with a draft final report within 90 days after completion 
of the

[[Page 2127]]

westbound Skyway contract and 90 days after completion of the 
Suspension Span foundations contract. This report should detail the 
monitoring protocol, summarize the data recorded during monitoring, and 
estimate the number of marine mammals that may have been harassed due 
to pile driving. If comments are received from the Regional 
Administrator on the draft final report, a final report must be 
submitted to NMFS within 30 days thereafter. If no comments are 
received from NMFS, the draft final report will be considered to be the 
final report.

National Environmental Policy Act (NEPA)

    In November, 2003, NMFS prepared an Environmental Assessment (EA) 
and, on November 4, 2003 made a Finding of No Significant Impact 
(FONSI). Therefore, preparation of an environmental impact statement on 
this action is not required. A copy of the EA and FONSI are available 
upon request (see ADDRESSES).

Endangered Species Act (ESA)

    On October 30, 2001, NMFS completed consultation under section 7 of 
the ESA with the Federal Highway Administration (FHWA) on the CALTRANS' 
construction of a replacement bridge for the East Span of the SF-OBB in 
California. The finding contained in the Biological Opinion was that 
the CALTRANS action at the East Span of the SF-OBB is not likely to 
jeopardize the continued existence of listed anadromous salmonids, or 
result in the destruction or adverse modification of designated 
critical habitat for these species. Listed marine mammals are not 
expected to be in the area of the action and thus would not be 
affected. The 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. However, as the 
effects of the underlying activities on listed salmonids were analyzed 
during a formal consultation between the FHWA and NMFS, and as the 
underlying action has not changed from that considered in the 
consultation, the discussion of effects that are contained in the 
Biological Opinion issued to the FHWA on October 30, 2001, pertains 
also to this action. In conclusion, NMFS has determined that issuance 
of an IHA for this activity does not lead to any effects to listed 
species apart from those that were considered in the consultation on 
FHWA's action.

Determinations

    For the reasons discussed in this document and in previously 
identified supporting documents, NMFS has determined that the impact of 
pile driving and other activities associated with construction of the 
East Span Project should result, at worst, in the Level B harassment of 
small numbers of California sea lions, Pacific harbor seals and 
potentially gray whales that inhabit or visit SFB in general and the 
vicinity of the SF-OBB in particular. While behavioral modifications, 
including temporarily vacating the area around the construction site, 
may be made by these species to avoid the resultant visual and acoustic 
disturbance, the availability of alternate areas within SFB and haul-
out sites (including pupping sites) and feeding areas within the Bay 
has led NMFS to preliminarily determine that this action will have a 
negligible impact on California sea lion, Pacific harbor seal, and gray 
whale populations along the California coast.
    In addition, no take by Level A harassment (injury) or death is 
anticipated and harassment takes should 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 potential incidental harassment of small numbers 
of harbor seals, California sea lions and California gray whales 
incidental to construction of a replacement bridge for the East Span of 
the San Franciso-Oakland Bay Bridge in California, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated. NMFS has determined that the construction activity 
would result in the harassment of only small numbers of harbor seals, 
California sea lions and possibly California gray whales and will have 
no more than a negligible impact on these marine mammal stocks.

    Dated: January 3, 2005.
Donna Wieting,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 05-624 Filed 1-11-05; 8:45 am]
BILLING CODE 3510-22-S