[Federal Register Volume 73, Number 129 (Thursday, July 3, 2008)]
[Notices]
[Pages 38180-38183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15161]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XI68


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; proposed incidental take authorization; request for 
comments.

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SUMMARY: NMFS has received a request from the California Department of 
Transportation (CALTRANS) for renewal of an authorization 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. Under the Marine Mammal Protection 
Act (MMPA), NMFS is requesting comments on its proposal to issue an 
authorization to CALTRANS to incidentally take, by harassment, small 
numbers of these species of pinnipeds and cetaceans during the next 12 
months.

DATES: Comments and information must be received no later than August 
4, 2008.

ADDRESSES: Comments on the application should be addressed 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 here. The mailbox address for providing email comments 
is [email protected]. Comments sent via e-mail, including all 
attachments, must not exceed a 10-megabyte file size. A copy of the 
2001 application, the 2008 renewal request, the January 2005 Marine 
Mammal and Acoustic Monitoring report, and the August 2006 
Hydroacoustic Measurements report may be obtained by writing to this 
address or by telephoning one of the contacts listed here.

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, 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 
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 certain subsistence uses and if 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 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 March 3, 2008, CALTRANS submitted 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), California. An IHA was issued to CALTRANS for this activity 
on May 2, 2007 and it expired on May 1, 2008 (72 FR 25748, May 7, 
2007). However, no pile driving activities were conducted during that 
period. In the March 3 request, CALTRANS states that it has scheduled 
pile driving for 2008 - 2009, which CALTRANS intended to begin in June 
2008. A detailed description of the SF-OBB project was provided in the 
November 14, 2003 (68 FR 64595) Federal Register notice of IHA and is 
not repeated here. Please refer to that Federal Register notice.
    On June 2, 2008, CALTRANS provided an update on the proposed pile 
driving activities planned for the 2008 season. In its update, CALTRANS 
states that pile driving for the 2008 construction would be driving the 
42 - 48 in (0.17 - 0.19 m) diameter temporary piles, as opposed to the 
5.9 - 8.2 ft (1.8 - 2.5 m) diameter permanent piles. Therefore, the 
noise from pile driving of these temporary piles would be far less than 
from previous pile driving

[[Page 38181]]

activities. In addition, CALTRANS indicates that deployment of air 
bubble curtain would not be feasible for the driving of these smaller 
temporary piles due to the complexity of the driving frames.

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. (2007), which is 
available at the following URL: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2007.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 levels below where harassment would be 
expected by the time they reach that haul-out site, 5.7 km (3.5 miles) 
from the project site. Therefore, no pinniped hauled out would be 
affected as a result of the proposed pile-driving. A detailed 
description of the acoustic measurements is provided in the 2004 
CALTRANS' marine mammal and acoustic monitoring report for the same 
activity (CALTRANS' 2005).
    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 proposed 
construction would result in harassment of only small numbers of harbor 
seals and would not result in more than a negligible impact on marine 
mammal stocks and their habitat. This was achieved by implementing a 
variety of monitoring and mitigation measures including marine mammal 
monitoring before and during pile driving, establishing safety zones, 
ramping up pile driving, and deploying air bubble curtain to attenuate 
underwater pile driving sound. However, with no air bubble curtain 
being deployed for the proposed pile driving of smaller temporary 
piles, additional cautions must be exercised to ensure that no marine 
mammals will be taken by Level A (i.e., injury) harassment. Based on 
the pinniped distribution within the proposed project area and prior 
monitoring reports, NMFS estimates that up to 5 harbor seals and 5 
California sea lions could be taken by Level B behavioral harassment as 
a result of the proposed temporary pile driving project.
    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.

Proposed Mitigation

    NMFS proposes the following mitigation measures for the planned 
2008 SF-OBB planned construction activities to reduce adverse impacts 
to marine mammals to the lowest extent practicable.

Establishment of Safety/Buffer Zones

    CALTRANS indicated that for the planned 2008 SF-OBB construction 
pile driving activities, an air bubble curtain cannot be deployed due 
to the complexity of the driving frame. Therefore, proposed shutdown 
safety zones corresponding to where a marine mammal could be injured 
would be established based on empirical field measurements of pile 
driving sound levels.
    These safety zones shall include all areas where the underwater 
SPLs are anticipated to equal or exceed 190 dB re 1 microPa rms 
(impulse) for pinnipeds and 180 dB re 1 microPa rms (impulse) for gray 
whales and harbor porpoises, and be monitored at all times when pile 
driving is underway.
    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.

[[Page 38182]]

Soft Start

    It should be recognized that although marine mammals will be 
protected from Level A harassment (i.e., injury) through marine mammal 
observers monitoring a 190-dB safety zone for pinnipeds 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 pile 
driving 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 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.

Proposed Monitoring

    The following monitoring measures were required under the 2007 - 
2008 IHA. Unless, as noted, the work has been completed, NMFS proposes 
to continue those monitoring measures under a new IHA (if issued).

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 required 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. Most likely observers will conduct the monitoring from small 
boats, as observations from a higher vantage point (such as the SF-OBB) 
are not practical. Pile driving will not begin until the safety zones 
are 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 be made using binoculars during 
daylight hours.
    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 seals 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.

Proposed Reporting

    Under previous IHAs, CALTRANS submitted weekly marine mammal 
monitoring reports for the time when pile driving was commenced. In 
August 2006, CALTRANS submitted its Hydroacoustic Measurement at Piers 
T1 and E2 report. This report is available

[[Page 38183]]

by contacting NMFS (see ADDRESSES) or on the Web at http://biomitigation.org.
    Under the proposed IHA, coordination with NMFS will occur on a 
weekly basis. 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 proposes to 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 no comments are received from NMFS Southwest 
Regional Administrator within 30 days, the draft final report will be 
considered the final report. If comments are received, a final report 
must be submitted within 30 days after receipt of comments.

National Environmental Policy Act (NEPA)

    NMFS prepared an Environmental Assessment (EA) for the take of 
marine mammals incidental to construction of the East Span of the SF-
OBB and made a Finding of No Significant Impact (FONSI) on November 4, 
2003. Due to the modification of part of the construction project and 
the mitigation measures, NMFS is reviewing additional information from 
CALTRANS regarding empirical measurements of pile driving noises for 
the smaller temporary piles, and will make a final NEPA determination 
before issuing a final IHA. A copy of the EA and FONSI is available 
upon request (see ADDRESSES).

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 in 
California. Anadromous salmonids are the only listed species which may 
be affected by the project. 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. Listed marine mammals 
are not expected to be in the area of the action and thus would not be 
affected.
    NMFS proposed issuance of an 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. The effects of the 
activities on listed salmonids were analyzed during consultation 
between the FHWA and NMFS, and the underlying action has not changed 
from that considered in the consultation. Therefore, the effects 
discussion contained in the Biological Opinion issued to the FHWA on 
October 30, 2001, pertains also to this action. NMFS has determined 
that issuance of an IHA for this activity does not lead to any effects 
on listed species apart from those that were considered in the 
consultation on FHWA's action.

Preliminary Determinations

    For the reasons discussed in this document and in previously 
identified supporting documents, NMFS has preliminarily 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 preliminarily 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. The activity will not have an unmitigable 
adverse impact on subsistence uses of marine mammals described in MMPA 
section 101(a)(5)(D)(i)(II)

Proposed Authorization

    NMFS proposes to issue 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. NMFS has 
preliminarily determined that the proposed activity would result in the 
harassment of only small numbers of harbor seals, California sea lions, 
harbor porpoises, and possibly gray whales and will have no more than a 
negligible impact on these marine mammal stocks.

Information Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning this request (see ADDRESSES). Prior to 
submitting comments, NMFS recommends reviewers of this document read 
NMFS' November 14, 2003 (68 FR 64595) Federal Register notice on the 
SF-OBB construction project, especially responses to comments made 
previously, as NMFS does not intend to address these issues further 
without the submission of additional relevant scientific information.

    Dated: June 27, 2008.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. E8-15161 Filed 7-2-08; 8:45 am]
BILLING CODE 3510-22-S