[Federal Register Volume 71, Number 200 (Tuesday, October 17, 2006)]
[Notices]
[Pages 61027-61031]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17240]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 100306G]


Incidental Takes of Marine Mammals During 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; proposed incidental take authorization; request for 
comments.

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SUMMARY:  NMFS has received an application from the Bay Marina 
Management Incorporated (BMMI) for the re-issuance of an Incidental 
Harassment Authorization (IHA) to take small numbers of marine mammals, 
by Level B harassment only, incidental to dredging on the west side of 
the Pier 39 Marina on the San Francisco waterfront, CA. NMFS issued an 
IHA for these activities in October, 2005; however, BMMI will be unable 
to complete the work by the time the 2005 IHA expires on October 16, 
2006. Therefore, BMMI has requested a new IHA to cover the completion 
of the previously analyzed and authorized action. Pursuant to the 
Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue an IHA to BMMI for the take, by Level B Harassment 
only, of small numbers of California sea lions and Pacific harbor 
seals.

DATES:  Comments and information must be received no later than 
November 16, 2006.

ADDRESSES:  Comments on the application should be addressed to Michael 
Payne, 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]v. 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.
    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the address specified 
above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.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 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 shall be granted if NMFS finds that the 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 mitigation, 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.''
    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 
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 14, 2006, NMFS received a request from BMMI to re-
issue 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. NMFS issued an IHA for these activities in 
October, 2005 (70 FR 69955); however, BMMI will be unable to complete 
the work by the time the 2005 IHA expires on October 16, 2006. 
Therefore BMMI has asked for a new IHA to cover the completion of the 
previously analyzed and authorized action.

[[Page 61028]]

Description of the Activity

    BMMI will complete the maintenance dredging begun before the 
previous IHA expired 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.
    The completion of the dredging operations at the Pier 39 west 
marina will occur in the last two weeks of November 2006, if at all 
possible, or in the summer of 2007. The complete project, which was 
authorized in the 2005 IHA, was expected to take approximately one to 
two weeks to complete. This IHA will cover any part of that work that 
was unable to be completed prior to October 17, 2006, and no work will 
be conducted that was not already analyzed in the previous IHA. 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.

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 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 34,233 individuals (Caretta et al., 2005) 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

[[Page 61029]]

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 small numbers of California sea 
lions and Pacific harbor seals, by Level B harassment only, 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 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 that 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 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

[[Page 61030]]

dredging is scheduled to stop in the following days.
    (2) During the dredging operations:
    - One count will be taken every morning before dredging work begins 
and every afternoon once operations cease.
    - 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:
    - Morning counts (taken at approximately same time as those taken 
previously (See 1)) will be made every day for a week.
    - 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 effects of the proposed dredging activities are expected to be 
limited to short-term startle responses and localized behavioral 
changes. NMFS anticipates that small numbers of California sea lions 
and Pacific harbor seals will effected.
    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). 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 California 
sea lions (approximately 0.5 to 2 percent of the population) will be 
harassed. These are small numbers relative to the size of the affected 
species or stock.
    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 (less than 0.01 percent of the population). These are 
small numbers relative to the size of the affected species or stocks.

Potential Effects of Proposed Activities on Marine Mammal Habitat

    NMFS anticipates that the proposed 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.

Potential Effects of Proposed 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 and issued a Finding of No 
Significant Impact on October 13, 2005. A copy of the EA and FONSI are 
available upon request (see ADDRESSES).

Preliminary Conclusions

    Based on the preceding information, and provided that the proposed 
mitigation and monitoring are incorporated, NMFS has preliminarily 
determined that the proposed completion of the dredging activities 
described in this document and authorized in the 2005 IHA may result in 
short-term and localized changes in behavior by small numbers of 
California sea lions and Pacific harbor seals. 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. While behavioral 
modifications may be made by the pinnipeds, including temporarily 
vacating the K Dock haulout, NMFS has preliminarily determined that 
these proposed takings will have a negligible impact on California sea 
lions and Pacific harbor seals.

Proposed Authorization

    NMFS proposes to issue an IHA to BMMI for the take, by Level B 
harassment only, of small numbers of California sea lions and Pacific 
harbor seals incidental to the completion of the previously authorized 
maintenance dredging around I, J, and K Docks at Pier 39 in San 
Francisco, provided the previously mentioned mitigation, monitoring, 
and reporting requirements are incorporated.


[[Page 61031]]


    Dated: October 10, 2006.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E6-17240 Filed 10-16-06; 8:45 am]
BILLING CODE 3510-22-S