[Federal Register Volume 70, Number 222 (Friday, November 18, 2005)]
[Notices]
[Pages 69955-69959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22861]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 052405C]


Small Takes 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; issuance of incidental harassment authorization.

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SUMMARY:  In accordance with the provisions of the Marine Mammal 
Protection Act (MMPA) as amended, notification is hereby given that 
NMFS has issued an Incidental Harassment Authorization (IHA) to Bay 
Marina Management Incorporated (BMMI) to take marine mammals by Level B 
harassment incidental to dredging on the west side of the Pier 39 
Marina on the San Francisco waterfront, CA.

DATES:  Effective from October 17, 2005, through October 16, 2006.

ADDRESSES:  A copy of the IHA and the application are available by 
writing 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, or by 
telephoning the contact listed here. A copy of the application 
containing a list of references used in this document may be obtained 
by writing to this address, by telephoning the contact listed here (see 
FOR FURTHER INFORMATION CONTACT) or online 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, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 166.

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.
    Authorization for incidental takings may be granted if NMFS finds 
that the taking will have no more than 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 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 authorization for the incidental harassment of 
small numbers of marine mammals. Within 45 days of

[[Page 69956]]

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 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 will 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 
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 will occur in late 
fall of 2005 or the summer of 2006 and are expected to take 
approximately one to two weeks to complete. Dredge machinery will 
operate from 8 a.m. to 3:30 p.m. daily. Approximately 13,000 yd\3\ 
(9,939 m\3\) of material will be removed. Dredged material will be 
tested for pollutants and toxins by the Dredge Material Management 
Office prior to approval to begin dredging, and 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.

Comments and Responses

    A notice of receipt of the BMMI application and proposed IHA was 
published in the Federal Register on September 6, 2005 (70 FR 52990). 
The Federal Register notice also invited comments on NMFS's associated 
draft Environmental Assessment (EA), which was posted on the NMFS 
website. During the comment period, NMFS received one comment from the 
Marine Mammal Commission (MMC).
    Comment: The MMC recommended that the requested authorization be 
issued, provided that the mitigation and monitoring activities proposed 
in the application and NMFS's Federal Register notice are carried out 
as described.
    Response: The mitigation and monitoring activities described in the 
application and the Federal Register notice have been incorporated into 
the requirements of the IHA.

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, 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 United States, 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 (when 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

[[Page 69957]]

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 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 of Activities on Marine Mammals

    The applicant is authorized to take California sea lions and 
Pacific harbor seals, by Level B harassment, incidental to the dredging 
activities described previously. 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, nor would they be likely 
to result in serious injury to marine mammals.
    The small, self-contained, clamshell dredge used for this activity 
may produce noise of a sufficient level to behaviorally harass marine 
mammals at K dock. Measured sound exposure levels (SELs) of similar 
equipment ranged between 75-88 dBA (re 20 microPa) measured at 15 m (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 have shown that an increasing 
percentage of seals have remained on shore during the noise, 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 startle reactions were accompanied by large-scale movements of 
marine mammals, such as stampedes into the water, the disruption could 
escalate into Level A harassment and could result in injury of 
individuals, especially if pups were 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 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 habituated 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 relative to their population size 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 habituate to the 
disturbance. The project is not expected to result in any permanent 
reduction in the number of animals at Pier 39. NMFS 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

[[Page 69958]]

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 behavioral 
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 Assistant 
Regional Administrator for Protected Resources and to the NMFS Division 
of Permits, Conservation, and Education, 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. 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 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 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

    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 prepared an Environmental Assessment (EA) on the Issuance of 
an IHA for the Dredging at Pier 39, posted the EA on the NMFS website 
concurrently with the Federal Register receipt of application notice, 
and received public comment on both the proposed IHA and the EA. NMFS 
issued a Finding of No Significant Impact on October 13, 2005. A copy 
of the EA and FONSI are available upon request (see ADDRESSES).

Conclusions

    NMFS has 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

[[Page 69959]]

measures mentioned previously in this document.
    NMFS has 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 has issued an IHA to 
BMMI for the 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.

Authorization

    NMFS has issued a 1-year IHA to BMMI for the take, by harassment, 
of small numbers of California sea lions and Pacific harbor seals 
incidental to maintenance dredging around I, J, and K Docks at Pier 39 
in San Francisco, California, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated. 
NMFS has determined that the proposed activity would result in the 
harassment of small numbers of marine mammals; would have no more than 
a negligible impact on the affected marine mammal stocks; and would not 
have an unmitigable adverse impact on the availability of species or 
stocks for subsistence uses.

    Dated: November 14, 2005.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 05-22861 Filed 11-17-05; 8:45 am]
BILLING CODE 3510-22-S