[Federal Register Volume 71, Number 214 (Monday, November 6, 2006)]
[Notices]
[Pages 64944-64946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-18690]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 100406A]


Taking of Marine Mammals Incidental to Specified Activities; 
Harbor Redevelopment Project, Moss Landing Harbor, California

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

ACTION:  Notice; issuance of an incidental take 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 Moss Landing 
Harbor District (MLHD), to take small numbers of Pacific harbor seals 
and California sea lions, by harassment, incidental to the harbor 
redevelopment project in Moss Landing Harbor, California.

DATES:  This authorization is effective from November 1, 2006 until 
October 31, 2007.

ADDRESSES:  A copy of the application, IHA, and supporting documents 
for this action may be obtained by writing to P. 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, or by telephoning the contact listed 
below.

FOR FURTHER INFORMATION CONTACT:  Shane Guan, NMFS, (301) 713-2289, ext 
137, 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, a notice of a proposed authorization is 
provided to the public for review.
    An authorization shall be granted if NMFS finds that the taking 
will be small, 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 April 24, 2006, NMFS received a request from the Terrestrial and 
Aquatic Biological Resources, on behalf of MLHD, to take small numbers 
of Pacific harbor seals (Phoca vitulina richardsi) and California sea 
lions (Zalophus californianus) incidental to the North Harbor 
Redevelopment Project in Moss Landing Harbor, Monterey County, 
California.
    The project includes construction of a 100-ft (30.5-m) long by 90-
ft (27.4-m) wide boat ramp, a 5,000-square foot (464.5-m\2\) public 
wharf with pedestrian promenade and seating areas, and installation of 
a 171-ft long (52.1-m) by 10-ft (3.1-m) wide floating dock. The total 
proposed project site is 4.5 acres (18,211.5 m\2\). The construction 
phase of the redevelopment would involve driving a total of 72 piles: 9 
for the boat ramp, 53 for the public wharf and promenade, and 10 for 
the floating dock. Installation of the pilings would most likely be 
from a land-based driver, however, a barge may be used for 
installation. The pilings will be concrete, 16-inch square for the 
wharf and the boat launch ramp boarding floats, and 20-inch square for 
the dock.
    An impact hammer is required for installation of the piles. The 
energy output levels of the impact hammer are approximately 48 - 94 
kiloJoules (kJ) (or 35,381 - 69,458 foot-pound force (ft-lbs)), 
depending on the setting. The hammer would be operating at the rate of 
36 - 52 blows per minute. The underwater noise level is measured at 
approximately between 165 - 175 dB re 1 microPa rms at 10 m (32.8 ft), 
and 155 - 170 dB re 1 microPa rms at 20 m (65.6 ft). It takes 
approximately 5 - 20 minutes drive time to install each pile, depending 
on the substrate encountered. Therefore, the maximum time required to 
install all piles would be 24 hours. The pile driving is estimated to 
be completed within 2 - 3 months. The proposed project would start in 
fall 2006.

Comments and Responses

    A notice of receipt and request for 30-day public comment on the 
application and the proposed authorization was published in the Federal 
Resister on September 8, 2006 (71 FR 53086). No comments were received 
during the 30-day public comment period. NMFS requested the review of 
the Marine Mammal Commission (the Commission) for the IHA application 
and proposed authorization. The Commission concurred with NMFS' 
determination that the proposed activities are unlikely to have a 
significant impact on the affected marine mammal populations.

[[Page 64945]]

Description of the Marine Mammals Potentially Affected by the Activity

    The affected species of marine mammals that may occur near the 
proposed project site are Pacific harbor seals and California sea 
lions. General information on these marine mammal species can be found 
in Caretta et al. (2006), which is available at the following URL: 
http://www.nmfs.noaa.gov/pr/pdfs/sars/po2005.pdf. None of the marine 
mammals species found in the proposed project areas is listed under the 
Endangered Species Act (ESA) or designated as depleted under the MMPA. 
Additional information on the abundance and occurrence of these species 
within or close to the proposed project area is presented below.

Pacific harbor seal

    Pacific harbor seals are mainly seen on the sand bar at the North 
area of the harbor (North Harbor), which is about 575 ft (175.3 m) west 
from the proposed project area, across a Federal navigation channel. 
They are also seen along the boat dock area, and swimming to and from 
the ocean. The North Harbor sand bar is not a typical Pacific harbor 
seal pupping area. The closest known seal pupping area is over 0.5 mile 
(0.8 km) east of the proposed project area at Seal Bend in Elkhorn 
Slough (NMFS, 2004).
    The number of Pacific harbor seals varies seasonally and with the 
time of day. They are most abundant during the day with approximately 
20 - 100 individuals at the North Harbor sand bar, but leave the sand 
bar in the evening to feed in Monterey Bay. The number of seals are 
most abundant during the pupping and molting season from May to August.

California sea lion

    California sea lions have been seen on the North Harbor docks, but 
their occurrence within the proposed project area is rare. Usually 
there are fewer than 2 individuals in the vicinity of Moss Landing 
Harbor (L. McIntyre, MLHD, 2006). Most of the sea lions in the Monterey 
Bay area are males of varying age classes that arrive in early fall 
from their southern breeding ground (Monterey Bay Aquarium, 1999). Many 
individuals remain over the course of the winter until the following 
spring, with just a few sea lions staying through the summer. There are 
no breeding areas for the California sea lion located in the Monterey 
Bay area, and most individuals migrate to offshore breeding sites in 
southern California and Mexico (NMFS, 2004).

Potential Effects on Marine Mammals and Their Habitat

    Construction of the boat ramp, public wharf and promenade, and 
floating docks has the potential to result in Level B behavioral 
harassment of Pacific harbor seals and California sea lions that may be 
swimming, foraging, or resting in the project vicinity while pile 
driving is being conducted. The impact to these marine mammals is 
expected to be disturbance by the presence of workers, construction 
noise, and possibly construction vessel traffic if pile driving is to 
be conducted from a barge. Disturbances could alter seal and sea lion 
behaviors and cause the animals to temporarily disperse from the area, 
or to flush and possibly return at a later time or could result in 
temporary use of an alternate haul out site in Monterey Bay.
    Noise from pile driving is expected to be much louder than all 
other noises from the construction. However, the impact hammer being 
selected has energy levels at 48-94 kJ (35,381-69,458 ft-lbs). These 
energy levels are significantly less than either of the two pile 
drivers being used on the San Francisco-Oakland Bay Bridge (SF-OBB) 
(see 68 FR 64595, November 14, 2003), which are 500 kJ and 1,700 kJ. As 
a result, airborne and underwater impact zones for marine mammals (and 
other aquatic life) will be significantly smaller than at SF-OBB.
    Based on underwater noise levels measured in 2004 during a separate 
project at Pier 40 in San Francisco, the hammer's impulses were 
recorded approximately between 165-175 dB re 1 microPa rms at 10 m 
(32.8 ft), and 155-170 dB re 1 microPa rms at 20 m (65.6 ft) from the 
pile. These levels are significantly below 190 dB re 1 microPa rms, the 
level NMFS uses to estimate Level A harassment of pinnipeds and the 
onset of temporary threshold shift (TTS) in pinniped hearing (see 68 FR 
64595, November 14, 2003).
    A self-monitoring program was also conducted by a contractor in 
July 2006 to obtain airborne noise levels from pile driving. Time-
averaged acoustic values in air ranged from 80 to 90 dB re 20 microPa, 
with peak discrete values approaching 100 dB re 20 microPa at 250 feet 
(76 m) from the sound source (Sea Engineering Inc., 2006). Studies have 
shown that when exposed to sound levels between 98.9 and 101 dB (re 20 
microPa) from rocket launch, harbor seals responded by fleeing into the 
water but many returned to land within several hours (Stewart, 1993). 
Ringed seals (Phoca hispida) exhibited little or no reaction to pipe-
driving noise measured at 112 and 96 dB re 20 microPa and 90 dB re 20 
microPa\2\s (Blackwell et al., 2004).

Mitigation

    The following mitigation measures are required under the IHA that 
has been issued to MLHD for construction activities, including pile 
driving, associated with the harbor redevelopment project at Moss 
Landing Harbor. NMFS believes that the implementation of these 
mitigation measures will reduce impacts to marine mammals to the lowest 
level practicable.

Time and Duration

    The pile driving of the construction will be completed before 
December 2006 to avoid the migrating gray whales (Eschrichtius 
robustus). Construction activities, including pile driving, will only 
take place during daylight hours between 7 am to 5 pm, when marine 
mammal monitoring prior to and during the pile driving can be 
effectively implemented.

Establishment of Safety Zones

    Before any pile driving, a clearly marked 250-ft (76 m) radius 
safety zone for Pacific harbor seals and California sea lions will be 
established. The safety zone would be marked by buoys for easy 
monitoring. At these distances, underwater sound pressure levels (SPLs) 
are expected to be significantly reduced from 165 - 175 dB re 1 microPa 
rms measured at 10 m (32.8 ft), and airborne noise levels are expected 
to be about 80 - 90 dB re 20 microPa. These SPLs are not believed to 
cause Level A harassment or onset of TTS (Level B harassment). A 500-ft 
radius safety zone was proposed in the proposed IHA (71 FR 53086), 
however, acoustic monitoring data show that it is overly conservative 
and would be difficult to monitor such a large area. Based on in-water 
and in-air acoustic monitoring data, NMFS believes that a 250-ft radius 
safety zone is sufficient to prevent Level A harassment and onset of 
TTS.
    Marine mammal observers (MMOs) on a boat will survey the safety 
zone to ensure that no marine mammals are seen within the zone before 
pile driving begins. If marine mammals are found within the safety 
zone, pile driving will be delayed until they move out of the area. If 
a marine mammal is seen above the water and then dives below, pile 
driving will wait 15 minutes and if no marine mammals are seen by the 
observer in that time it will be assumed that the animal has moved 
beyond the safety zone. This 15-minute criterion is based on scientific 
evidence that harbor seals in San Francisco Bay dive for a

[[Page 64946]]

mean time of 0.50 minutes to 3.33 minutes (Harvey and Torok, 1994).
    Once pile driving begins and an animal is seen or believed to 
entered the 250 ft (76 m) radius safety zone, the contractor must 
suspend pile driving and wait till the animal leaves the safety zone, 
or 15 minutes after the last sighting of the animal, before pile 
driving starts.

Soft Start

    Although marine mammals will be protected from Level A harassment 
by establishment of a safety zone of 250-ft (76 m) radius, mitigation 
may not be 100 percent effective at all times in locating marine 
mammals. In order to provide additional protection to marine mammals 
near the project area by allowing marine mammals to vacate the area, 
thus further reducing the incidence of Level B harassment from 
startling marine mammals with a sudden intensive sound, MLHD will 
implement a ``soft start'' practice when startup pile driving. By 
implementing the ``soft start'' practice, pile driving would be 
initiated at an energy level less than full capacity (i.e., 
approximately 40-60 percent energy levels) for at least 5 minutes 
before gradually escalate to full capacity. This would ensure that, 
although not expected, any pinnipeds that are undetected during safety 
zone monitoring will not be injured.

Compliance with Equipment Noise Standards

    To mitigate noise levels and, therefore, impacts to Pacific harbor 
seals and California sea lions, 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 and Reporting

    MLHD must implement a monitoring plan that would collect data for 
each distinct marine mammal species observed during pile driving at the 
Moss Landing Harbor construction site. Marine mammal behavior, overall 
numbers of individuals observed, frequency of observation, and any 
behavioral changes due to the pile driving will be recorded.
    Monitoring will be conducted by qualified NMFS-approved biologists. 
Binoculars and range finders will be provided to MMOs for accurately 
identifying species and determining distances.
    Monitoring will begin prior to the first day of the pile driving to 
establish baseline data, and occur during the entire period when pile 
driving is underway, and continue for 30 minutes after the pile 
driving. Post construction monitoring will also be conducted for a 
period of one day upon completion of pile driving to identify any 
change of pinniped behaviors.
    Before the startup of the pile driving, MMOs would visually survey 
the area to confirm the safety zone is clear of any marine mammals. 
Pile driving will not begin until the safety zone is clear of marine 
mammals. Monitoring would continue by the observers on a boat during 
the entire period of pile driving. However, as described in the 
Mitigation section, once pile driving begins, operations will continue 
uninterrupted until that pile is installed. However, if driving of a 
pile is completed and a marine mammal is sighted within the designated 
safety zone prior to commencement of the next pile driving, the 
observer(s) must notify the pile driver (or other authorized 
individual) immediately and follow the mitigation requirements as 
outlined previously (see Mitigation).
    MLHD will submit a final report to NMFS 90 days after completion of 
the project. The final report will include data collected for each 
distinct marine mammal species observed in the vicinity of the 
construction area during pile driving. Marine mammal behavior, overall 
numbers of individuals observed, frequency of observation, and any 
behavioral changes due to the pile driving would also be included in 
the final report.

ESA

    Based on a review conducted by NMFS biologists, no ESA-listed 
species are expected to occur in the proposed action area. NMFS has 
determined that no species listed under the ESA are likely to be 
affected and, therefore, a section 7 consultation is not warranted.

National Environmental Policy Act (NEPA)

    NMFS prepared an Environmental Assessment (EA) on the issuance of 
an IHA for the taking of marine mammals incidental to demolition of the 
Sandholdt Road Bridge and construction of a new bridge in Moss Landing, 
California, in 2004 and made a Finding of No Significant Impact (FONSI) 
on December 21, 2004. The proposed action discussed in this document is 
not substantially different from the action analyzed in the 2004 EA, 
and a reference search has indicated that no significant new scientific 
information or analyses have been developed in the past 2 years that 
would warrant new NEPA documentation. Therefore, a new EA is not 
warranted for the proposed project.

Determinations

    For the reasons discussed in this document and identified 
supporting documents, NMFS has determined that the impact of pile 
driving associated with Moss Landing Harbor redevelopment project would 
result, at worst, in the Level B harassment of small numbers of Pacific 
harbor seals and California sea lions in the vicinity of the proposed 
project area. While behavioral modifications, including temporarily 
vacating the area during the pile driving, may be made by these species 
to avoid the resultant visual and acoustic disturbance, the 
availability of alternate areas near Monterey Bay and haul-out sites 
(including pupping sites) and feeding areas within the Bay has led NMFS 
to determine that this action will have a negligible impact on small 
numbers of Pacific harbor seal and California sea lion populations near 
the proposed project area.
    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

    NMFS has issued an IHA to MLHD for the potential harassment of 
small numbers of harbor seals and California sea lions incidental to 
Moss Landing Harbor redevelopment project in Moss Landing, California, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: October 31, 2006.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E6-18690 Filed 11-3-06; 8:45 am]
BILLING CODE 3510-22-S