[Federal Register Volume 72, Number 87 (Monday, May 7, 2007)]
[Notices]
[Pages 25748-25752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8698]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 050107A]


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

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

ACTION:  Notice of issuance of an incidental harassment authorization.

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SUMMARY:  In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that an Incidental 
Harassment Authorization (IHA) has been issued to the California 
Department of Transportation (CALTRANS) to take small numbers of 
California sea lions, Pacific harbor seals, harbor porpoises, and gray 
whales, by harassment, incidental to construction of a replacement 
bridge for the East Span of the San Francisco-Oakland Bay Bridge (SF-
OBB) in California.

DATES:  This authorization is effective from May 2, 2007 until May 1, 
2008.

ADDRESSES:  A copy of the application, IHA, and/or a list of references 
used in this document 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.

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, notice of a proposed authorization is 
provided to the public for review.
    Permission shall be granted if NMFS finds that the taking will have 
no more than a negligible impact on the species or stock(s) and will 
not have an unmitigable adverse impact on the availability of the 
species or stock(s) for subsistence uses and that the permissible 
methods of taking and requirements pertaining to the mitigation, 
monitoring, and reporting of such taking are set forth. NMFS has 
defined ``negligible impact'' in 50 CFR 216.103 as ''...an impact 
resulting from the specified activity that cannot be reasonably 
expected to, and is not reasonably likely to, adversely affect the 
species or stock through effects on annual rates of recruitment or 
survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to

[[Page 25749]]

incidentally take small numbers of marine mammals by harassment. Except 
with respect to certain activities not pertinent here, the MMPA defines 
``harassment'' as:
    any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [Level A harassment]; or (ii) has the potential to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[Level B harassment].
    Section 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny issuance of the 
authorization.

Summary of Request

    On October 16, 2006, CALTRANS sumbitted a request to NOAA 
requesting renewal of an IHA for the possible harassment of small 
numbers of California sea lions (Zalophus californianus), Pacific 
harbor seals (Phoca vitulina richardsii), harbor porpoises (Phocoena 
phocoena), and gray whales (Eschrichtius robustus) incidental to 
construction of a replacement bridge for the East Span of the SF-OBB, 
in San Francisco Bay (SFB or the Bay), California. An IHA was issued to 
CALTRANS for this activity on April 30, 2006 and it will expire on 
April 29, 2007 (71 FR 26750, May 8, 2006). Background information on 
the issuance of this IHA was published in the Federal Register on 
January 5, 2007 (72 FR 532). A detailed description of the SF-OBB 
project was provided in the November 14, 2003 (68 FR 64595) Federal 
Register notice and is not repeated here.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on January 5, 2007 
(72 FR 532). During the 30-day public comment period, the Marine Mammal 
Commission (Commission) provided the only comment.
    Comment: The Commission states that it recommends that NMFS grant 
the applicant's request, provided that the monitoring and mitigation 
activities described in the NMFS' previous Federal Register notices are 
carried out as described.
    Response: NMFS agrees with the Commission's recommendation, and all 
monitoring and mitigation measured described in the previous Federal 
Register notices (71 FR 26750, May 8, 2006; 72 FR 532, January 5, 2007) 
are required in the current IHA.

Description of the Marine Mammals Potentially Affected by the Activity

    General information on the marine mammal species found in 
California waters can be found in Caretta et al. (2006), which is 
available at the following URL: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2005.pdf. Refer to that document for information on these species.
    The marine mammals most likely to be found in the SF-OBB area are 
the California sea lion, Pacific harbor seal, and harbor porpoise. From 
December through May gray whales may also be present in the SF-OBB 
area. Information on California sea lion, harbor seal, and gray whale 
was provided in the November 14, 2003 (68 FR 64595), Federal Register 
notice; information on harbor porpoise was provided in the January 26, 
2006 (71 FR 4352), Federal Register notice.

Potential Effects on Marine Mammals and Their Habitat

    CALTRANS and NMFS have determined that open-water pile driving, as 
outlined in the project description, has the potential to result in 
behavioral harassment of California sea lions, Pacific harbor seals, 
harbor porpoises, and gray whales that may be swimming, foraging, or 
resting in the project vicinity while pile driving is being conducted. 
Pile driving could potentially harass those few pinnipeds that are in 
the water close to the project site, whether their heads are above or 
below the surface.
    Based on airborne noise levels measured and on-site monitoring 
conducted during 2004 under the previous IHA, noise levels from the 
East Span project did not result in the harassment of harbor seals 
hauled out on Yerba Buena Island (YBI). Also, noise levels from the 
East Span project are not expected to result in harassment of the sea 
lions hauled out at Pier 39 as airborne and waterborne sound pressure 
levels (SPLs) would attenuate to below harassment levels by the time 
they reach that haul-out site, 5.7 km (3.5 miles) from the project 
site.
    For reasons provided in greater detail in NMFS' November 14, 2003 
(68 FR 64595) Federal Register notice and in CALTRANS' June 2004, 
January 2005 annual monitoring reports, and marine mammal observation 
memoranda between February and September, 2006, the East Span Project 
resulted in only small numbers of harbor seals. Therefore, it is not 
expected that these activities will result in more than a negligible 
impact on marine mammal stocks and will not have a significant impact 
on their habitat. No pile driving has been commenced since September 
15, 2006. Short-term impacts to habitat may include minimal disturbance 
of the sediment where the channels are dredged for barge access and 
where individual bridge piers are constructed. Long-term impacts to 
marine mammal habitat will be limited to the footprint of the piles and 
the obstruction they will create following installation. However, this 
impact is not considered significant as the marine mammals can easily 
swim around the piles of the new bridge, as they currently swim around 
the existing bridge piers.

Mitigation

    The following mitigation measures are required under the IHA to 
reduce impacts to marine mammals to the lowest extent practicable.

Barrier Systems

    An air bubble curtain system is required to be used only when 
driving the permanent open-water piles. While the bubble curtain is 
required specifically as a method to reduce impacts to endangered and 
threatened fish species in SFB, it may also provide some benefit for 
marine mammals. The NMFS' Biological Opinion and the California 
Department of Fish and Game's (CDFG) 2001 Incidental Take Permit also 
allow for the use of other equally effective methods, such as 
cofferdams, as an alternative to the air bubble curtain system to 
attenuate the effects of sound pressure waves on fish during driving of 
permanent in-Bay piles (NMFS 2001; CDFG, 2001). Piers E-16 through E-7 
for both the eastbound and westbound structures of the Skyway will be 
surrounded by sheet-pile cofferdams, which will be de-watered before 
the start of pile driving. De-watered cofferdams are generally 
effective sound attenuation devices. For Piers E3 through E6 of the 
Skyway and Pier 1 the Self-Anchored Suspension span, it is anticipated 
that cofferdams will not be used; therefore, a bubble curtain will 
surround the piles.

Sound Attenuation

    As a result of the determinations made during the Pile Installation 
Demonstration Project (PIDP) restrike and the investigation at the 
Benicia-Martinez Bridge, NMFS determined in 2003 that CALTRANS must 
install an air bubble curtain for pile driving for the open-water piles 
without cofferdams

[[Page 25750]]

located at the SF-OBB. This specification and configuration of the air 
bubble curtain system is described in pervious Federal Register notice 
(71 FR 4352, January 26, 2006), and is not repeated here.

Establishment of Safety/Buffer Zones

    A safety zone is to be established and monitored and will include 
all areas where the underwater SPLs are anticipated to equal or exceed 
190 dB re 1 microPa rms (impulse) for pinnipeds. Also, a 180-dB re 1 
microPa rms (impulse) safety zone for gray whales and harbor porpoises 
must be established for pile driving occurring during the gray whale 
migration season from December through May. Prior to commencement of 
any pile driving, a preliminary 500-m (1,640-ft) radius safety zone for 
pinnipeds (California sea lions and Pacific harbor seals) will be 
established around the pile driving site, as it was for the PIDP. Once 
pile driving begins, either new safety zones can be established for the 
500 kJ and 1,700 kJ hammers or the 500 m (1,640 ft) safety zone can be 
retained. If new safety zones are established based on SPL 
measurements, NMFS requires that each new safety zone be based on the 
most conservative measurement (i.e., the largest safety zone 
configuration). SPLs will be recorded at the 500-m (1,640-ft) contour. 
The safety zone radius for pinnipeds will then be enlarged or reduced, 
depending on the actual recorded SPLs.
    Observers on boats will survey the safety zone to ensure that no 
marine mammals are seen within the zone before pile driving of a pile 
segment begins. If marine mammals are found within the safety zone, 
pile driving of the segment will be delayed until they move out of the 
area. If a marine mammal is seen above water and then dives below, the 
contractor will wait 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 mean time of 
0.50 minutes to 3.33 minutes (Harvey and Torok, 1994), and the mean 
diving duration for harbor porpoises ranges from 44 to 103 seconds 
(Westgate et al., 1995). However, due to the limitations of monitoring 
from a boat, there can be no assurance that the zone will be devoid of 
all marine mammals at all times.
    Once the pile driving of a segment begins it cannot be stopped 
until that segment has reached its predetermined depth due to the 
nature of the sediments underlying the Bay. If pile driving stops and 
then resumes, it would potentially have to occur for a longer time and 
at increased energy levels. In sum, this would simply amplify impacts 
to marine mammals, as they would endure potentially higher SPLs for 
longer periods of time. Pile segment lengths and wall thickness have 
been specially designed so that when work is stopped between segments 
(but not during a single segment), the pile tip is never resting in 
highly resistant sediment layers. Therefore, because of this 
operational situation, if seals, sea lions, or harbor porpoises enter 
the safety zone after pile driving of a segment has begun, pile driving 
will continue and marine mammal observers will monitor and record 
marine mammal numbers and behavior. However, if pile driving of a 
segment ceases for 30 minutes or more and a marine mammal is sighted 
within the designated safety zone prior to commencement of pile 
driving, the observer(s) must notify the Resident Engineer (or other 
authorized individual) immediately and follow the mitigation 
requirements as outlined previously in this document.

Soft Start

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

Compliance with Equipment Noise Standards

    To mitigate noise levels and, therefore, impacts to California sea 
lions, Pacific harbor seals, harbor porpoises, and gray whales, all 
construction equipment will comply 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

    The following monitoring measures are required under the IHA to 
reduce impacts to marine mammals to the lowest extent practicable.

Visual Observations

    The area-wide baseline monitoring and the aerial photo survey to 
estimate the fraction of pinnipeds that might be missed by visual 
monitoring have been completed under the current IHA and do not need to 
be continued.
    Safety zone monitoring will be conducted during driving of all 
open-water, permanent piles without cofferdams and with cofferdams when 
underwater SPLs reach 190 dB RMS or greater. Monitoring of the pinniped 
and cetacean safety zones will be conducted by a minimum of three 
qualified NMFS-approved observers for each safety zone. One three-
observer team will be required for the safety zones around each pile 
driving site, so that multiple teams will be used if pile driving is 
occurring at multiple locations at the same time. The observers will 
begin monitoring at least 30 minutes prior to startup of the pile 
driving. Observers will most likely conduct the monitoring from small 
boats, as observations from a higher vantage point (such as the SF-OBB) 
is not practical. Pile driving will not begin until the safety zone is 
clear of marine mammals. However, as described in the Mitigation 
section, once pile driving of a segment begins, operations will 
continue uninterrupted until the segment has reached its predetermined 
depth. However, if pile driving of a segment ceases for 30 minutes or 
more and a marine mammal is sighted within the designated safety zone 
prior to commencement of pile driving, the observer(s) must notify the 
Resident Engineer (or other authorized individual) immediately and 
follow the mitigation requirements as outlined previously (see 
Mitigation). Monitoring will continue through the pile driving period 
and will end approximately 30 minutes after pile driving has been 
completed. Biological observations will

[[Page 25751]]

be made using binoculars during daylight hours. Infrared (IR) scopes 
will be made using binoculars during low light condition for marine 
mammal monitoring.
    In addition to monitoring from boats during open-water pile 
driving, monitoring at one control site (harbor seal haul-out sites and 
the waters surrounding such sites not impacted by the East Span 
Project's pile driving activities, i.e. Mowry Slough) will be 
designated and monitored for comparison. Monitoring will be conducted 
twice a week at the control site whenever open-water pile driving is 
being conducted. Data on all observations will be recorded and will 
include items such as species, numbers, behavior, details of any 
observed disturbances, time of observation, location, and weather. The 
reactions of marine mammals will be recorded based on the following 
classifications that are consistent with the Richmond Bridge Harbor 
Seal survey methodology (for information on the Richmond Bridge 
authorization, see 68 FR 66076, November 25, 2003): (1) No response, 
(2) head alert (looks toward the source of disturbance), (3) approach 
water (but not leave), and (4) flush (leaves haul-out site). The number 
of marine mammals under each disturbance reaction will be recorded, as 
well as the time when seal re-haul after a flush.

Acoustical Observations

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

Reporting

    Under previous IHAs, CALTRANS submitted weekly marine mammal 
monitoring reports when pile driving is commenced. In August 2006, 
CALTRANS submitted its Hydroacoustic Measurement at Piers T1 and E2 
report. This report is available by contacting NMFS (see ADDRESSES) or 
on the Web at http://biomitigation.org.
    Under the 2007 IHA, coordination with NMFS will occur on a weekly 
basis, or more often as necessary. During periods with open-water pile 
driving activity, weekly monitoring reports will be made available to 
NMFS and the public at http://biomitigation.org. These weekly reports 
will include a summary of the previous week's monitoring activities and 
an estimate of the number of seals and sea lions that may have been 
disturbed as a result of pile driving activities.
    In addition, CALTRANS will provide NMFS' Southwest Regional 
Administrator with a draft final report within 90 days after completion 
of the westbound Skyway contract and 90 days after completion of the 
Suspension Span foundations contract. This report should detail the 
monitoring protocol, summarize the data recorded during monitoring, and 
estimate the number of marine mammals that may have been harassed due 
to pile driving. If comments are received from the Regional 
Administrator on the draft final report, a final report must be 
submitted to NMFS within 30 days thereafter. If no comments are 
received from NMFS, the draft final report will be considered to be the 
final report.

National Environmental Policy Act (NEPA)

    In November, 2003, NMFS prepared an Environmental Assessment (EA) 
and made a Finding of No Significant Impact (FONSI) on this action. 
Notice of public availability of the EA/FONSI was published on November 
14, 2003 (68 FR 64595) and on October 20, 2004 (69 FR 61652). NMFS has 
reviewed the November 4, 2003 EA/FONSI in response to the request for 
renewal of this IHA and has determined that the findings and 
determinations made in the EA/FONSI continue to accurately address the 
impacts on the human environment through the taking of marine mammals 
by the CALTRANS project. Therefore, preparation of an environmental 
impact statement on this action is not required.

Endangered Species Act (ESA)

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

[[Page 25752]]

Determinations

    For the reasons discussed in this document and in previously 
identified supporting documents, NMFS has determined that the impact of 
pile driving and other activities associated with construction of the 
East Span Project should result, at worst, in the Level B harassment of 
small numbers of California sea lions, Pacific harbor seals, harbor 
porpoises, and potentially gray whales that inhabit or visit SFB in 
general and the vicinity of the SF-OBB in particular. While behavioral 
modifications, including temporarily vacating the area around the 
construction site, may be made by these species to avoid the resultant 
visual and acoustic disturbance, the availability of alternate areas 
within SFB and haul-out sites (including pupping sites) and feeding 
areas within the Bay has led NMFS to determine that this action will 
have a negligible impact on California sea lion, Pacific harbor seal, 
harbor porpoises, and gray whale populations along the California 
coast.
    In addition, no take by Level A harassment (injury) or death is 
anticipated and harassment takes should be at the lowest level 
practicable due to incorporation of the mitigation measures mentioned 
previously in this document.

Authorization

    NMFS has issued an IHA to CALTRANS for the potential harassment of 
small numbers of harbor seals, California sea lions, harbor porpoises, 
and gray whales incidental to construction of a replacement bridge for 
the East Span of the San Franciso-Oakland Bay Bridge in California, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: May 1, 2007.
Wanda Cain,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. E7-8698 Filed 5-4-07; 8:45 am]
BILLING CODE 3510-22-S