[Federal Register Volume 70, Number 171 (Tuesday, September 6, 2005)]
[Notices]
[Pages 52990-52994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17639]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 052405C]


Small Take of Marine Mammals Incidental to Specified Activities; 
Maintenance Dredging Around Pier 39, San Francisco, California

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; receipt of application and proposed incidental 
harassment authorization; request for comments.

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SUMMARY: NMFS has received an application from Bay Marina Management 
Incorporated (BMMI) to take small numbers of marine mammals,

[[Page 52991]]

by harassment, incidental to dredging on the west side of the Pier 39 
Marina on the San Francisco waterfront, CA. Under the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
issue an incidental harassment authorization (IHA) to BMMI for 1 year.

DATES: Comments and information must be received no later than October 
6, 2005.

ADDRESSES: Comments on the application should be addressed to Steve 
Leathery, Chief, Permits, Conservation and Education Division, Office 
of Protected Resources, National Marine Fisheries Service, 1315 East-
West Highway, Silver Spring, MD 20910-3225. The mailbox address for 
providing email comments is [email protected]. NMFS is not 
responsible for e-mail comments sent to addresses other than the one 
provided here. Comments sent via e-mail, including all attachments, 
must not exceed a 10-megabyte file size. Comments may also be submitted 
via facsimile to (301) 427-2521. A copy of the application containing a 
list of the references used in this document may be obtained by writing 
to this address or by telephoning the contact listed here and is also 
available at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications. Documents cited in this notice may be 
viewed, by appointment, during regular business hours, at the 
aforementioned address.

FOR FURTHER INFORMATION CONTACT: Jolie Harrison, (301) 713-2289, or 
Monica DeAngelis, NMFS Southwest Region, (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 (Secretary) 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.
    Authorization may be granted if the Secretary finds that the total 
taking will have a negligible impact on the species or stock(s), 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.''
    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. Except for certain categories of actions 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 
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 August 9, 2004, NMFS received an application from Bay Marina 
Management Incorporated (BMMI) requesting an IHA for the take, by 
harassment, of small numbers of California sea lions (Zalophus 
californianus) and Pacific harbor seals (Phoca vitulina) incidental to 
the maintenance dredging the I, J, and K Docks on the west side of Pier 
39 Marina on the San Francisco waterfront, California.

Description of the Activity

    BMMI proposes to perform maintenance dredging using a small, self-
contained clamshell-style crane barge between docks I, J, and K at the 
Pier 39 west marina. These maintenance measures are necessary to 
maintain safe navigation depths at the marina, which currently has 
reduced water depths attributed to the accretion of bay sediment. The 
proposed dredging at Pier 39 will remove sediment to create water 
depths in the project area of 9 ft (2.7 m) Mean Lower Low Water (MLLW), 
plus an additional two-foot overdredge allowance. Dredging design area 
limits (footprints) include the faces, approaches, and entrance 
channels to each berthing area up to the limit of the adjacent pier. 
Dredging will occur between June 1 and November 30 to avoid impacts to 
steelhead trout and Chinook salmon.
    Dredging operations at the Pier 39 west marina are expected to 
occur in late fall of 2005 or the summer of 2006 and are estimated to 
take approximately one to two weeks to complete. Dredge machinery would 
operate from 8 a.m. to 3:30 p.m. daily. Approximately 13,000 yd\3\ 
(9,939 m\3\) of material would be removed. Material to be dredged will 
be tested for pollutants and toxins by the Dredge Material Management 
Office prior to approval to begin dredging, and deposition of dredged 
materials will be deposited in accordance with local, state and federal 
regulations. Once removed, the dredged material will be transferred to 
Piers 96/98, which are owned and operated by the Port of San Francisco, 
and from there it will be disposed of at an approved upland disposal 
site.
    The proposed dredging of the Pier 39 west berthing area will focus 
on the channels and slips of I and J docks and half of the channel 
between J and K docks. The original K dock was destroyed by the 
combined weight of hundreds of California sea lions that frequently use 
the area as a haul-out. Pier 39 replaced the damaged dock with a number 
of ten by twelve-foot floats for the sea lions to use. Since there are 
no actual berthing sites at K dock, no dredging will be necessary in 
the area immediately surrounding or under K dock. The crane barge will 
be situated at the furthest distance possible from K dock during each 
dredging episode. The closest that the barge will be to the K dock 
haul-out is when dredging the channel between J and K docks. When the 
barge is dredging this channel it will be moored to the bayside of J 
dock and extend the clamshell dredge arm out into the channel, towards 
K dock. Since the distance between J and K docks is 100 ft (30 m) and 
the barge is 30 ft (9 m) wide, it will never be positioned closer than 
50 ft (15 m) to K dock at any time during the dredging project.

Description of Habitat and Marine Mammals Affected by the Activity

    The marine mammal species known to be present at the Pier 39 Marina 
area are the California sea lion (Zalophus californianus) and the 
Pacific harbor seal (Phoca vitulina). Since 1993, a single adult male 
Steller sea lion (Eumetopias jubatus) has been observed hauled out on K 
dock intermittently during the months of July and August,

[[Page 52992]]

and occasionally in September (30 sightings in the last 10 years). 
However, this project will not affect the Steller sea lion because 
dredging activities will be halted if a Steller sea lion is observed.
    Additional information on these species can be found in Marine 
Mammal Stock Assessment Reports, which are available online at: http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html.

California Sea Lions

    California sea lions range from southern Mexico to southwestern 
Canada. In the U.S., they breed during July after pupping in late May 
to June, primarily in the Channel Islands of California. Most 
individuals breed on the Channel Islands off southern California and 
off Baja and mainland Mexico, although a few pups have been born on Ano 
Nuevo Island and this year a pup was born on the docks at Monterey and 
subsequently transferred to Ano Nuevo Island with its mother. Following 
the breeding season on the Channel Islands, most adult and sub-adult 
males migrate northward to central and northern California and to the 
Pacific Northwest, while most females and young animals either remain 
on or near the breeding grounds throughout the year or move southward 
or northward, as far as Monterey Bay.
    Since nearing extinction in the early 1900's, the California sea 
lion population has increased and is now growing at a rate of 5.4 to 
6.1 percent per year (based on pup counts) with an estimated minimum 
population of 138,881 animals. Actual population numbers may be as high 
as 237,000 to 244,000 animals. The population is not listed as 
``endangered'' or ``threatened'' under the Endangered Species Act 
(ESA), nor is this species listed as ``depleted'' or as a ``strategic 
stock'' under the MMPA.
    California sea lions first appeared at Pier 39 in September, 1989. 
Numbers of hauled-out sea lions were relatively low the first year and 
K Dock was only used as a haul out from late summer through the winter. 
Within a few years, larger numbers of sea lions were observed at K Dock 
and they began using the haul-out throughout the year. The Marine 
Mammal Center (MMC) began monitoring California sea lions at Pier 39 in 
the late 1990's and counts indicate peak usage of K dock at Pier 39 in 
May and early June, just prior to the breeding season. Although numbers 
decrease during mid-summer, since most adults relocate to the rookeries 
for pupping and breeding, some sea lions, of all age classes, remain in 
the area and continue to haul out at Pier 39. Within the dredging work 
window (June 1 to November 30) the largest numbers of California sea 
lions are found at K Dock in the late summer and fall. The highest 
number of individuals ever observed at once between June 1 and November 
30 at Pier 39 to date was 1244, in August of 2003. If the number of 
individuals observed at one count is averaged by month, from June to 
November, since 2000, the averages range from 169 for July to 709 in 
September. Since monitoring began in 1991, only 10 California sea lion 
pups have been observed at Pier 39, in 1997 and 1998. These pups, which 
were all weaned, most likely hauled out at K Dock due to the El Nino, 
and pups are not expected at the project site in ``normal'' years.

Pacific Harbor Seals

    Although not commonly observed at Pier 39, Pacific harbor seals 
have been documented as visitors to K dock numerous times in the past 
decade. Harbor seals range from Baja California in Mexico northward to 
the Aleutian Islands of Alaska. The population estimate for the 
California stock is 27,863 individuals (Caretta, et al., 2004) and is 
relatively stable.
    Harbor seals inhabit coastal waters within their range and prefer 
sheltered bays and inlets to the exposed coastline. Daily haul-out 
behavior of harbor seals is typically dependent on the tides, weather 
and time of day. Harbor seals exhibit seasonal variation in 
reproductive timing depending on geography. The pupping season for 
California populations is in the spring, with populations in the San 
Francisco Bay typically bearing young from March 15 through May 31 
(Green et al., 2001). There are two active pupping sites in the San 
Francisco Bay, Mowry Slough in the South Bay and Castro Rocks in the 
North Bay. Pups have been observed at Yerba Buena Island and Corte 
Madera Marsh in the San Francisco Bay. No births have been witnessed at 
these locations, but Yerba Buena is thought to be a potential pupping 
site. No harbor seal pups have ever been seen at Pier 39.
    Annual counts of harbor seals at Pier 39 range from 0 seals 
observed in 1999 and 2004, to a high of nine observations in 2000 for a 
total of 28 observations between 1997-2004. No more than two harbor 
seals have been observed hauled out simultaneously at any given time at 
K Dock. No harbor seals have been observed hauling out at Pier 39 July 
through September. No pups have been observed at Pier 39. Observations 
by MMC volunteers indicate that observed harbor seals at Pier 39 tend 
to distance themselves from the California sea lions hauling out in the 
vicinity.

Potential Effects on Marine Mammals

    The applicant requests authorization for incidental taking, by 
Level B harassment, of California sea lions and Pacific harbor seals. 
Level B harassment may occur if hauled animals flush the haulout and/or 
move to increase their distance from dredging-related activities, such 
as noise associated with dredging, presence of a crane barge, the 
presence of workers, or unfamiliar activity in proximity to the haulout 
site. This disturbance from acoustic and visual stimuli is the 
principal means of marine mammal taking associated with these 
activities.
    Sudden brief noises have been shown to elicit startle reactions in 
some pinnipeds. Novel looming visual stimuli may induce similar startle 
reactions in pinnipeds. Daily engine starts and movements of the dredge 
bucket and vessel may induce startled and/or flight behavior in marine 
mammals using K dock as a haul out. However, this area has become a 
tourist spot for viewing sea lions, and the current population of 
animals utilizing K dock is accustomed to human activities and regular 
noise levels from people, traffic, use of nearby boat slips, and other 
marine operations. If animals do flush into the water, they may return 
to the haul-out site immediately, stay in the water for a length of 
time and then return to the haul-out, or temporarily haul-out at 
another site. Many factors contribute to the degree of behavioral 
modification, if any, including seasonality, group composition of the 
pinnipeds, type of activity they are engaged in and what noises they 
may be accustomed to experiencing. Short-term reactions such as startle 
or alert reactions are unlikely to disrupt behavior patterns such as 
migrating, breeding, feeding and sheltering and would not likely cause 
serious injury to marine mammals.
    The small, self-contained, clamshell dredge used for this activity 
may produce noise of a sufficient level to harass marine mammals at K 
dock. Measured sound energy levels (SELs) of similar equipment ranged 
between 75-88 dBA (re 20 microPa) measured at 50 feet (the closest 
distance that the dredge unit will be to K dock) (Boeing, 2005). 
Results of an ongoing study at Vandenberg Air Force Base of the effects 
of rocket launches on pinnipeds indicate that the percentage of Pacific 
harbor seals leaving the haul-out increases with noise level up to an 
SEL of approximately 100 dBA, after which almost all seals leave, 
although recent data has shown that an increasing

[[Page 52993]]

percentage of seals have remained on shore, and those that remain are 
adults. Though harbor seals are more sensitive to audio stimuli than 
sea lions, these results indicate that animals are flushed at an SEL 
less than 100 dBA, and it is possible that marine mammals at K Dock may 
modify their behavior as a result of the lesser dredge noise.
    If a startled reaction is accompanied by large-scale movements of 
marine mammals, such as stampedes into the water, the disruption may 
escalate into Level A harassment and could result in injury of 
individuals, especially if pups are present. However, due to the 
uniqueness of this particular haul-out area, the unlikely presence of 
pups, and the proposed shut-down procedures should pups be sighted, 
NMFS believes there is a very low likelihood of such injury occurring 
at the Pier 39 site. Specifically, the haul-out consists of many 
separate floating platforms that can hold up to about 25 marine mammals 
each. If disrupted to the point of flushing off the platforms, 
pinnipeds can quickly leap or roll into the water in any direction off 
the relatively small platforms, avoiding a dangerous stampede-like 
situation that may occur at normal haul-out locations such as exposed 
rocks. Additionally, marine mammal pups use this haul-out very 
infrequently (approximately 10 pups have been sighted at K Dock, in 
1997 and 1998, during the El Nino), further reducing potential harm to 
the species.
    Over the last 13 years, BMMI has observed the sea lions either 
ignore various unfamiliar intrusions and remain hauled out, or adapt to 
them and eventually become acclimated and return to their normal 
behavior. Disturbance from these proposed dredging activities is 
expected to have a only a short-term negligible impact to a small 
number of California sea lions and a few Pacific harbor seals. At a 
maximum, short-term impacts are expected to result in a temporary 
reduction in utilization of K dock as a haulout site while work is in 
progress or until seals acclimate to the disturbance. The project is 
not expected to result in any permanent reduction in the number of 
animals at Pier 39. NMFS preliminarily agrees with BMMI that effects 
will be limited to short-term and localized behavioral changes falling 
within the MMPA definition of Level B harassment.

Mitigation

    To minimize disturbance of marine mammals from visual and acoustic 
stimuli associated with the dredging activities, BMMI will use a small 
(relative to the range of sizes of equipment that could accomplish the 
task) clamshell dredge that can easily target the specific areas to be 
dredged. The smaller equipment will also minimize the amount of 
turbidity resulting from the dredging activities. The dredge material 
will be immediately loaded onto a barge and transported to a nearby 
terrestrial disposal site at Piers 96 and 98, which will allow for a 
shorter project duration.
    When not in use, the clamshell dredge and dredge barge will be 
parked as far as feasible from the K Dock. After starting engines in 
morning, the clamshell dredge will be moved as slowly as possible to 
the area to be dredged and the dredge head lowered slowly and carefully 
into the water.
    As mentioned previously, if a Steller sea lion of any age or a 
marine mammal pup of any species is spotted at any time during dredging 
operations, operations will cease until the animal has left the area.

Monitoring

    The K dock haulout will be monitored periodically during dredging 
activities by two NMFS-approved observers according to the following 
schedule:
    (1) During the week prior to the commencement of dredging 
activities, morning counts will be taken every morning at the same 
time. One afternoon count will be taken at approximately the same time 
the dredging is scheduled to stop in the following days.
    (2) During the dredging operations:
    (a) One count will be taken every morning before dredging work 
begins and every afternoon once operations cease.
    (b) On the first day of dredging and on one other day near the end 
of dredging operations, monitors will be present all day (starting one 
hour before operations begin and remaining until 2 hours after 
operations cease) and they will document specific behaviors as they 
relate to specific aspects of the dredging operations and other 
activities. An additional count will be conducted 2 hours after 
dredging operations cease. Rates of departure and arrival of animals 
from/to the haulout will be noted.
    (3) Following completion of the dredging:
    (a) Morning counts (taken at approximately same time as those taken 
previously (See 1)) will be made every day for a week.
    (b) An afternoon count will be conducted the day after dredging 
ceases and on the last day of the post-dredging monitoring.
    (4) During all monitoring periods the following data will be 
recorded: date, time, observer, tidal height, species present, maximum 
number of animals hauled out, number of adults and sub-adults, number 
of males and females (if possible), any observed disturbances to the 
animals, and the number of animals disturbed (for example, if animals 
flushed, reports should include the number of animals that returned to 
the water, and those that remained hauled out). During periods of 
dredging a description of dredging activities will also occur 
(including location of dredge, i.e., between J and K Docks, or between 
I and J Docks).

Reporting

    A draft report will be submitted to the NMFS Southwest Regional 
Administrator and the Office of Protected Resources within 90 days 
after project completion. A final report will be submitted within 30 
days of receiving NMFS' comments, if any, on the draft report. The 
Report will contain, analyze, and summarize the information required 
under Monitoring, above, as well estimating the number of animals taken 
by Level B Harassment. BMMI will share data collected as a result of 
these monitoring activities with other interested parties, such as the 
Marine Mammal Center and other boat marinas.

Numbers of Marine Mammals Expected to be Harassed

    The highest number of California sea lions ever counted at one time 
on the K Dock between June 1 and November 30 was 1244 individuals in 
August 2003. The average number of individuals counted at one time 
within the work window since 2000 is lowest in July (169) and highest 
in September (709). The effects of the proposed dredging activities are 
expected to be limited to Level B Harassment in the form of short-term 
startle responses and localized behavioral changes. Based on an average 
of 169 to 709 animals over the maximum of 14 days, NMFS estimates that 
California sea lions could be exposed to audio or visual stimulus 
likely to cause harassment between 2360 and 9930 times. However, based 
on review of the Pier 39 observer logs maintained over the last 14 
years, which indicate that sea lions may remain in the area and haul 
out for several days in a row at the K dock, NMFS estimates that 
between 1180 to 4965 individual animals will be harassed. The highest 
total number of harbor seals ever seen in one month between June 1 and 
November 30 was 3 in November of 1997. NMFS anticipates that no more 
than 3 Pacific harbor seals will be harassed by this activity. These 
are

[[Page 52994]]

small numbers relative to the size of the affected species or stocks.

Possible Effects of Activities on Marine Mammal Habitat

    NMFS anticipates that the action will result in minor and short-
term effects on marine mammal habitat, including a temporary increase 
in the turbidity in the area of the dredging and a temporary decrease 
in the quality of K dock as a haul-out site as a result of increased 
visual and audio stimuli.

Possible Effects of Activities on Subsistence Needs

    There are no subsistence uses for California sea lions or Pacific 
harbor seals in California waters, and thus, there are no anticipated 
effects on their availability for subsistence uses.

Endangered Species Act (ESA)

    Though a single Steller sea lion has infrequently been sighted at 
the K Dock, BMMI plans to cease dredging operations immediately if one 
is seen, and not begin dredging again until the animal has left the 
area of its own volition. NMFS does not anticipate any impacts to 
Steller sea lions to result from the issuance of the IHA.
    In the 1998 programmatic Biological Opinion addressing dredging in 
San Francisco Bay, NMFS established a June 1 to November 30 work window 
for dredging activities in the San Francisco Bay to avoid impacts to 
steelhead trout and Chinook salmon. BMMI proposes to dredge between 
June 1 and November 30, and therefore NMFS does not anticipate any 
impacts to ESA-listed fish.

National Environmental Policy Act (NEPA)

    NMFS has conducted a preliminary NEPA analysis and produced a draft 
Environmental Assessment (EA) on the Issuance of an IHA for the 
Incidental Take, by Harassment, of Marine Mammals During the Dredging 
of Pier 39, San Francisco, California. Concurrently with the 
publication of this document, the EA has been posted on the NMFS 
website at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications. Public comments are solicited 
regarding both the EA and this notice. NMFS will issue a record of 
decision under NEPA prior to the issuance or denial of this IHA.

Preliminary Conclusions

    NMFS has preliminarily determined that the dredging activities 
described in this document and in the application for an IHA may result 
in short-term and localized changes in behavior by small numbers of 
California sea lions and Pacific harbor seals. While behavioral 
modifications may be made by the seals, including temporarily vacating 
the K Dock haulout, this action is expected to have a negligible impact 
on the animals. In addition, no take by injury or death is anticipated, 
and take by harassment will be at the lowest level practicable due to 
incorporation of the mitigation measures mentioned previously in this 
document.
    NMFS has preliminarily determined that the proposed activity would 
result in the harassment of small numbers of California sea lions and 
Pacific harbor seals, and that the takings will have no more than a 
negligible impact on these marine mammal stocks. Accordingly, NMFS 
proposes to issue an IHA to BMMI for the potential harassment of small 
numbers of California sea lions and Pacific harbor seals incidental to 
dredging around Pier 39, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.

Information Solicited

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

    Dated: August 30, 2005.
Donna Wieting,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 05-17639 Filed 9-2-05; 8:45 am]
BILLING CODE 3510-22-S