[Federal Register Volume 75, Number 54 (Monday, March 22, 2010)]
[Notices]
[Pages 13498-13502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6252]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XS23


Small Takes of Marine Mammals Incidental to Specified Activities; 
Dumbarton Bridge Seismic Retrofit Project, 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 the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the California Department 
of Transportation (Caltrans) allowing the take of small numbers of 
marine mammals, by Level B harassment only, incidental to pile driving 
associated with the Dumbarton Bridge Seismic Retrofit Project.

DATES:  Effective August 15, 2010, through August 14, 2011.

ADDRESSES:  A copy of the IHA and the application are available 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 here. 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:  Jaclyn Daly, Office of Protected 
Resources, NMFS, 301-713-2289.

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. 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].''
    Authorization for incidental takings 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 (where 
relevant), and if 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. 
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 the authorization.

Summary of Request

    On April 17, 2009, NMFS received a request from Caltrans to harass 
marine mammals incidental to the Dumbarton Bridge Seismic Retrofit 
Project. NMFS issued a notice in the Federal Register

[[Page 13499]]

on December 4, 2009 (74 FR 63724), requesting comments from the public 
on the proposed IHA.
    The Dumbarton Bridge, located in southern San Francisco Bay (Bay), 
was designed in the late 1970s based on the design standards that 
Caltrans established in 1971. Since that time, upgraded standards have 
been issued, particularly Caltrans' Seismic Design Criteria of 1999, 
which the bridge does not meet. The Dumbarton Seismic Retrofit Project 
would provide a seismic upgrade of the Dumbarton Bridge to meet these 
current requirements. Pile driving during the project may result in 
harassment of harbor seals (Phoca vitulina richardii), California sea 
lions (Zalophus californianus), and gray whales (Eschrichtius robustus) 
within the action area.

Description of the Specified Activity

    A complete description of the specified activity may be found in 
NMFS' proposed IHA notice (74 FR 63724) and a summary is provided here. 
To allow access to shallow water (<10 ft) piers which need to be 
retrofitted, a temporary trestle supported by 24-inch hollow steel 
piles must be installed; a barge will allow access to piers in deeper 
water. In addition, cofferdams will be created using sheet piles to 
pour concrete collars around pre-existing piles to strengthen the 
piers. Installation of the temporary steel and sheet piles necessitates 
use of mainly vibratory hammers, but an impact hammer may be used for 
proofing (i.e., tapping the piles into the ground to conduct load 
bearing tests) up to two piles each day. The entire retrofit project is 
expected to take three years to complete; however, installation of the 
temporary piles is expected to take approximately 4 months and 
installation of sheet piles could take one year.

Construction Process

    A complete description of activities which have the potential to 
result in harassment to marine mammals is provided in the associated 
proposed IHA notice (74 FR 63724, December 4, 2009). In summary, 
Caltrans would construct a temporary trestle, comprised of 
approximately 1,000 24-in steel pipe piles, on each approach section of 
the bridge to gain access to shallow water piers needed to be 
retrofitted. No trestle will be constructed in the main channel as all 
work in the channel will take place from a stationary barge. In 
addition, cofferdams will be created around 20 piers (piers 5-15 and 
32-40) by vibrating steel sheet piles into place around each pier.
    Retrofitting itself involves strengthening connections between 
columns, pedestals, and pile caps and does not involve intense sound 
production. Pile driving used to construct the trestles; however, does 
result in elevated noise levels; therefore, this activity may impact 
marine mammals in the vicinity of the operating pile driver. Piles 
associated with the temporary trestles would only be installed in water 
less than 10 ft in depth and would be driven out of water whenever 
possible (e.g., on the mudbanks at low tide). The piles will be 
inserted in rows of three, with approximately 25 ft (7.6 m) between 
each row. Temporary trestle superstructure (decking) will then be 
constructed atop the support piles. An additional 16 piles will extend 
from the temporary work trestle to surround each existing support pier 
to allow construction around all sides of the pier. All temporary 
trestles will be less than 25 ft wide. Caltrans will install a maximum 
of 12 piles per day (six on each side of the Bay) using mainly a 
vibratory pile driving method. Vibration installation will start and 
continue for 5 minutes followed by an approximate 30-minute delay. The 
second pile will be vibrated into place for 5 minutes. Bent members and 
spans will then be erected, possibly taking 2 to 3 hours before the 
second set of piles is vibrated into place.
    In total, vibratory pile driving would not occur for more than two 
hours per day. In order to verify load capacity of the temporary piles, 
approximately one in eight piles (12 percent) will be ``tapped'' with 
an impact hammer for proofing. Each pile to be tested would be tapped 
for a total of 10-15 seconds. No more than two piles per day would need 
testing. Vibratory pile driving may occur at any time during the year; 
however, when ESA-listed steelhead may be present (December 1st to June 
14th), the re-tap or use of an impact hammer is restricted to low-tide 
periods only to minimize impact to salmonids.
    Caltrans would also retrofit existing trestle structures on land at 
the east and west ends of the bridge to provide lateral strengthening. 
Each trestle is 600 ft long. To accomplish this, Caltrans would install 
of a total of 28 permanent 48-inch steel pipe piles close to the waters 
edge but not in the water; distance to the water is dependent upon the 
tidal stage. Fourteen of these piles would be placed on already paved 
road and fourteen would be placed into weedy ruderal vegetation 
enclosed by parking islands and the trestle itself. A maximum of four 
piles per day would be installed requiring 30-minutes driving time. 
These piles would be installed between October 1 and November 30 to 
avoid salmon migration periods. Although these piles would be driven on 
land, noise from impact hammering could propagate into the water from 
vibration and through the air-water interface.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on December 4, 
2009 (74 FR 63724). 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 issue 
the requested authorization, provided that the monitoring and 
mitigation activities described in NMFS' 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 notice (74 FR 63724) are required in the current IHA.

Description of Marine Mammals in the Area of the Specified Activity

    At least 35 marine mammal species can be found off the coast of 
California; however, few venture into the Bay and only Pacific harbor 
seals and California sea lions inhabit the southern portion of the Bay 
regularly. Gray whales are sighted in the Bay during their yearly 
migration, though most sightings tend to occur in the central Bay. 
Information on California sea lions, harbor seals, and gray whales was 
provided in the December 4, 2009 (74 FR 63724), Federal Register 
notice.

Potential Effects on Marine Mammals

    NMFS and Caltrans have determined that exposure to noise from pile 
driving activities has the potential to result in behavioral harassment 
of California sea lions, Pacific harbor seals, and gray whales that may 
be swimming, foraging, or resting in the project vicinity while pile 
driving is being conducted. A detailed description of potential impacts 
to marine mammals can be found in NMFS' December 4, 2009, Federal 
Register notice (74 FR 63724) and are summarized here.
    Marine mammals produce sounds in various contexts and use sound for 
various biological functions including, but not limited to, (1) social 
interactions; (2) foraging; (3) orientation; and (4) predator 
detection. Interference with producing or receiving these sounds may 
result in adverse impacts.

[[Page 13500]]

Audible distance, or received levels (RLs) will depend on the nature of 
the sound source, ambient noise conditions, and the sensitivity of the 
receptor to the sound (Richardson et al., 1995). Type and significance 
of marine mammal reactions to noise are likely to depend on a variety 
of factors including, but not limited to, the behavioral state (e.g., 
feeding, traveling, etc.) of the animal at the time it receives the 
stimulus, frequency of the sound, distance from the source, and the 
level of the sound relative to ambient conditions (Southall et al., 
2007).
    Current NMFS practice regarding exposure of marine mammals to 
anthropogenic noise is that in order to avoid injury of marine mammals 
(e.g., PTS), cetaceans and pinnipeds should not be exposed to impulsive 
sounds of 180 and 190 dB rms or above, respectively. This level is 
considered precautionary as it is likely that more intense sounds would 
be required before injury would actually occur (Southall et al., 2007). 
As such, Caltrans has proposed safety zones based on hydroacoustical 
modeling for the pile sizes and type of hammers used for the Dumbarton 
Bridge project and water depth. The model simulates practical spreading 
(i.e., 15 log R). Potential for behavioral harassment (Level B) is 
considered to have occurred when marine mammals are exposed to sounds 
at or above 160 dB rms for impulse sounds (e.g., impact pile driving) 
and 120dB rms for non-pulse noise (e.g., vibratory pile driving), but 
below the aforementioned injury thresholds. Estimated distances to NMFS 
current threshold sound levels from pile driving during the proposed 
action are outlined in Table 1 below (see Chapter 7 and Appendix A in 
the application for further detail how these distances were derived). 
In-air noise calculations from pile driving for this project predict 
that noise levels will be reduced to approximately 83 dB re: 20 microPa 
at 800 m. Harbor seals or California sea lions are not known to haul-
out this close to the bridge (the closest haul-out is 2.7 miles away); 
therefore, pinnipeds at haulouts are not expected to be affected from 
in-air pile driving noise.

                                Table 1: Modeled underwater distances to NMFS' marine mammal harassment threshold levels.
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                                                                                                  Calculated Distance to Criteria Thresholds
                 Driving Location                      Pile Type       Hammer Type   -------------------------------------------------------------------
                                                                                           190 dB           180 dB           160 dB           120 dB
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Water                                                   24'' steel           Impact      60 ft (18m)     220 ft (67m)         3,300 ft              n/a
                                                                                                                               (1005m)
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Water                                                   24'' steel        Vibratory              n/a       10 ft (3m)              n/a   3.2 miles (5.14
                                                                                                                                                    km)
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Water                                                   Sheet pile        Vibratory              n/a      5 ft (1.5m)              n/a   1.4 miles (2.25
                                                                                                                                                   kms)
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Land                                                    48'' steel           Impact              n/a   100 ft (30.5 m)  1,475 ft (500m)             n/a
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Land                                                   Steel piles        Vibratory                0                0                0   150 ft (45.7 m)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    NMFS anticipates reactions of marine mammals to noise will be 
similar to those documented during previous Caltrans' pile driving 
projects and those presented in scientific literature. These include 
short-term behavioral disturbances such as temporary avoidance behavior 
around the bridge, which may affect the routes of seals and sea lions 
or temporary cessation of foraging. Pinnipeds are not known to pup 
within the action area; therefore, this behavior will not be affected. 
Gray whales are not known to socialize, calve, or forage within the 
action area; therefore, these behaviors would not be interrupted. 
However, some avoidance by gray whales may occur. Because pile driving 
would not occur continuously throughout the day, any effects from pile 
driving will be limited. The location of piles would be limited to 
shallow water (<10 ft); no piles would be placed in the channel. 
Therefore, adequate passage space under the bridge will be available to 
marine mammals. No long term impacts are expected to occur.

Anticipated Effects on Marine Mammal Habitat

    Marine mammal habitat will be temporarily disturbed due to pile 
driving activities. All steel and sheet piles would be removed once the 
project is complete; therefore, no additional obstacles (e.g., more 
piles than currently present) would be permanent. Noise from pile 
driving may adversely impact individual fish species which serve as 
marine mammal prey; however, this would be limited to fish within the 
immediate vicinity of the pile and is not expected to substantially 
reduce prey availability.

Monitoring and Mitigation Measures

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable adverse 
impact on such species or stock and its habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stock for 
taking for certain subsistence uses. The latter does not apply here as 
no subsistence hunting takes place in California. The following 
summarizes mitigation and monitoring measures set forth in the IHA.

Limited Use of Impact Hammer

    As a result of ESA Section 7 consultation discussions with NMFS (to 
reduce impacts to ESA-listed fish species), Caltrans has agreed to 
drive all temporary piles with a vibratory hammer with the exception of 
one pile per day being ``proofed'' with an impact hammer, which has a 
higher source level. Proofing requires approximately 20 blows per pile, 
which equates to approximately 15-20 seconds of impact hammering per 
day. Additionally, Caltrans would limit proofing piles to during low 
tide only, essentially out-of-water on the mudbanks, when ESA-listed 
steelhead salmon are present (December 1 to June 14). This also serves 
as a mitigation measure for marine mammals.

[[Page 13501]]

Establishment of Safety Zone and Shut-down Requirements

    Although the isopleths to the 190dB and 180dB harassment thresholds 
are modeled to be within 220 ft (67 m) of the impact pile hammer (see 
Table 1), Caltrans will initially shut down or delay commencement of 
pile driving should a marine mammal come within or approach 250 ft 
(76m) of the pile being driven. This safety zone may be modified, 
pending NMFS' approval based on sound source verification tests 
conducted upon commencement of pile driving (see Acoustic Monitoring 
below).
    Although occurring on land, impact driving 48'' piles with an 
impact hammer could attenuate to levels at or above NMFS Level A 
harassment threshold of 190 dB and 180 dB for pinnipeds and cetaceans, 
respectively, out to 100 ft (30.5 m) at high tide (see Table 1). Impact 
pile driving on land at low tide is not expected to emit harassment 
threshold levels into the water. As a conservation recommendation 
during ESA Section 7 consultation, NMFS has advised all pile driving on 
land close to the shoreline be done during low tide to reduce impacts 
to ESA listed fish. However, should land based pile driving occur 
during high tide, Caltrans will shut down should a marine mammal 
approach within 100 ft of land.

Soft Start to Pile Driving Activities

    A ``soft start'' technique will be used at the beginning of each 
pile installation to allow any marine mammal that may be in the 
immediate area to leave before impact piling reaches full energy. The 
soft start requires contractors to initiate noise from vibratory 
hammers for 15 seconds at reduced energy followed by 1-minute waiting 
period. The procedure will be repeated two additional times. Due to the 
short duration of impact pile driving (20 seconds), the general ramp-up 
requirement for impact pile driving does not apply as it would actually 
increase the duration of noise emitted into the environment and 
monitoring should effectively detect marine mammals within or near the 
designated safety zone (initially 250 ft). If any marine mammal is 
sighted within or approaching the safety zone prior to pile-driving, 
Caltrans will delay pile-driving until the animal has moved outside the 
safety zone and on a path away from such zone or until after 15 minutes 
have elapsed since the last sighting of the marine mammal.

Visual Monitoring

    At least one week prior to the start of construction, the protected 
species observers (PSOs), trained in detection and identification of 
marine mammals, will conduct a survey in order to establish baseline 
data of marine mammal use in the project area. This effort will consist 
of 12 hours of monitoring during the in-water construction work window 
that will be used during construction (0700 to 1900 hrs).
    Monitoring of the safety zone (initially 250 ft) will be conducted 
by PSOs 30 minutes prior to, during, and 30 minutes post all active 
pile driving. Pile driving will not begin until the safety zone is 
clear of marine mammals and will be stopped in the event that marine 
mammals enter the safety zone. PSOs will begin monitoring at least 30 
minutes prior to the commencement of pile driving and end 30 minutes 
after pile driving ceases. If the time between pile driving segments is 
more than 30 minutes, a new 30 minute survey is unnecessary provided 
marine mammal monitoring continues during the interruption. Data 
collection will consist of: (1) a count of all pinnipeds and cetaceans 
sighted by species, age and sex class, where able to be determined; (2) 
a description of behavior (based on the Richmond Bridge Harbor Seal 
Survey classification system); (3) location; (4) direction of movement; 
(5) type of construction that is occurring; (6) any acoustic or visual 
reactions to specified activities; and (7) time of the observation; (8) 
time that pile driving begins and ends; and (9) environmental 
conditions such as wind speed, wind direction, visibility, temperature, 
tide level, current, and sea state (described using the standard 
Beaufort sea scale).
    Monitoring of marine mammals will be conducted using high quality 
binoculars (e.g., Zeiss, 10 x 42 power). When possible, digital video 
or 35 mm still cameras will also be used to document the behavior and 
response of marine mammals to construction activities or other 
disturbances. Each monitor will have a radio for contact with other 
researchers or work crews if necessary, a GPS unit for determining 
observation location, and an electronic range finder to determine 
distance to marine mammals, boats, buoys and construction equipment. 
Most likely observers will conduct the monitoring from the Dumbarton 
Bridge surface or catwalks, providing a high vantage point for the 
observer; however, should a small vessel be used to monitor for marine 
mammals, PSOs will remain 50 yards from swimming pinnipeds in 
accordance with NMFS marine mammal viewing guidelines (http://swr.nmfs.noaa.gov/psd/rookeryhaulouts/CASEALVIEWBROCHURE.pdf). This 
will prevent additional harassment to pinnipeds from the vessel.

Acoustic Monitoring

    Hydroacoustic monitoring will be conducted by a qualified monitor 
during pile driving activities when piles are being driven in water 
greater than 3 feet in depth. Details will be developed during work 
plan preparation, but might include monitoring one pile in every set of 
3 piles during installation of the temporary trestles. Sound 
measurements will be taken as close to the source as possible and at 
all modeled distances to the 190 dB, 180 dB, 160 dB (impact only), and 
120 dB (vibratory only). Measurements will be taken at two depths: one 
in mid water column and one near the bottom but at least 3 feet above 
the bottom, unless obstructions such as land force a variation in depth 
or number of measurements. Marine mammal safety zones may be adjusted, 
pending NMFS' approval, according to the results of this monitoring.

Reporting

    A final report summarizing all marine mammal monitoring data, 
including those parameters listed above, and construction activities 
will be submitted to NMFS 90 days after the IHA expires. An acoustic 
report analyzing underwater sound characteristics during pile driving 
shall also be submitted within 90 days of expiration of the IHA.

Negligible Impact and Small Numbers Analysis and Determination

    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.''
    For reasons provided in greater detail in NMFS' December 4, 2009 
(74 FR 63724), Federal Register notice, pile driving could result in 
harassment of harbor seals (n = 1,120), California sea lions (n = 20), 
and gray whales (n = 2) and would not result in more than a negligible 
impact on marine mammal stocks and their habitat. The number of marine 
mammals authorized to be taken incidental to pile driving activities is 
considered small when compared to the population sizes of the affected 
stocks (34,233; 238,000; and 18,813, respectively). That is, up to 
3.3%, 0%, and 0% of the affected stocks,

[[Page 13502]]

respectively, may be taken by Level B harassment.
    Based on the analysis contained herein on the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS finds that pile driving associated with the Dumbarton 
Bridge Seismic Retrofit Project will result in the incidental take of 
small numbers of marine mammals, by Level B harassment only, and that 
the total taking will have a negligible impact on the affected species 
or stocks. There are no relevant subsistence uses of marine mammals 
implicated by this action; therefore, no impacts to subsistence use 
will occur.

Endangered Species Act (ESA)

    No ESA-listed marine mammals are known to occur within the action 
area; therefore, ESA consultation on issuance of the proposed IHA was 
not required. However, other ESA-listed species under NMFS' 
jurisdiction do occur within the action area.
    On January 12, 2009, NMFS received a request from the Federal 
Highway Administration (FHWA) to initiate consultation under section 7 
of the ESA on Caltrans' proposed Dumbarton Bridge Seismic Retrofit 
Project as ESA-listed fish are present within the action area. NMFS 
issued a Biological Opinion (BiOp) on Caltran's Dumbarton Bridge 
Seismic Retrofit Project on August, 10, 2009. The BiOp concluded that 
the proposed activities were not likely to jeopardize the continued 
existence of Central California Coast steelhead Distinct Population 
Segment (DPS) or North American green sturgeon DPS and are not likely 
to adversely modify or destroy critical habitat for CCC steelhead DPS.

National Environmental Policy Act (NEPA)

    On September 2, 2009, Caltrans released an Environmental Assessment 
(EA) and Finding of No Significant Impact for the Dumbarton Bridge 
project. For purposes of issuing an IHA, NMFS found the environmental 
analysis on marine mammal impacts lacking and determined further NEPA 
analysis was necessary. In the proposed IHA Federal Register notice for 
this action, NMFS preliminary determined a Categorical Exclusion memo 
was appropriate for issuing an IHA for the specified activities. 
However, after further consideration, NMFS prepared an EA analyzing the 
effects of the authorized on the human environment. Based on the 
analyses in the EA, NMFS determined that issuance of the IHA would not 
significantly impact the quality of the human environment and that 
preparation of an environmental impact statement was not required.

    Dated: March 12, 2010.
James H. Lecky,
Director,Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2010-6252 Filed 3-19-10; 8:45 am]
BILLING CODE 3510-22-S