[Federal Register Volume 75, Number 68 (Friday, April 9, 2010)]
[Notices]
[Pages 18160-18163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8167]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XS24


Small Takes of Marine Mammals Incidental to Specified Activities; 
Antioch 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 Antioch 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 May 4, 2009, NMFS received a request from Caltrans to harass 
marine mammals incidental to the Antioch Bridge Seismic Retrofit 
Project. In accordance with the MMPA, NMFS

[[Page 18161]]

issued a notice in the Federal Register on December 21, 2009 (74 FR 
67856), requesting comments from the public on the proposed IHA.
    The Antioch Bridge 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, of which the bridge does not meet. The 
retrofit project will provide a seismic upgrade of the Antioch Bridge 
to meet these current requirements. Pile driving during the project may 
result in harassment of harbor seals (Phoca vitulina richardii) and 
California sea lions (Zalophus californianus) within the action area.

Description of the Specified Activity

    The Antioch Bridge is located 5.4 miles east of the confluence of 
the Sacramento and San Joaquin Rivers, is 9,437-ft long, accommodates 
one lane of traffic in either direction, and includes narrow 
accommodation for bicyclists and pedestrians. Proposed retrofit 
elements to the bridge include installation of steel bracings; 
replacement of the existing elastometric bearings with isolation 
bearings; and removal of the existing curtain walls and retrofit of all 
the columns within the slab span structure. To accomplish this, a 
temporary trestle will be built to allow access to the piers in shallow 
water (out to Pier 11). The temporary marine trestle will be 
constructed from the south shore of the San Joaquin River, out 
approximately 910-ft into the river along the west side of the existing 
bridge structure. This is where water depths are less than 10-ft below 
mean lower-low water (MLLW) and are too shallow to be accessed by 
barge. The trestle will be 25 ft wide with piles spaced 25-ft apart. It 
will be constructed using approximately 160 24-in steel hollow shell 
piles, which will be installed with a vibratory hammer. Vibrating a 
single 24-in pile into place requires, at the most, ten minutes of 
noise generating vibration. In addition, Caltrans will ``proof'' or 
test one pile per day using an impact hammer to ensure the pile can 
sustain the required load. Proofing the piles will require 
approximately 20-40 blows per day, generating elevated sound pressure 
for about one minute per day. The entire project is expected to take 
2.5 years to complete; installation of the temporary piles is expected 
to take approximately 4 months and is planned for August 1- November 1, 
2010, although this may be delayed due to construction scheduling. At 
the completion of the project, the trestle and all associated piles 
will be removed. All pile driving will be conducted during daylight 
hours only.

Comments and Responses

    A notice of receipt and request for public comment on the 
application and proposed authorization was published on December 21, 
2009 (74 FR 67856). 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 notice 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 67856) 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 eastern arm of the Bay over 
which the Antioch Bridge stretches. Both species have been known to 
sporadically venture into estuaries and rivers in search of food, and 
the California Department of Fish and Game (CDFG) indicates that the 
ranges of these two species encompass the region of the Delta in which 
the project occurs. Detailed information on California sea lions and 
harbor seals was provided in the December 21, 2009 (74 FR 67856), 
Federal Register notice.

Potential Effects on Marine Mammals

    NMFS and Caltrans have determined that pile driving has the 
potential to result in behavioral harassment of harbor seals and 
California sea lions that may be swimming or foraging in the project 
vicinity while pile driving is being conducted. A detailed description 
of potential impacts to marine mammals can be found in NMFS' proposed 
IHA Federal Register notice (December 21, 2009, 74 FR 67856) 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. 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 be dependent 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), 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). 
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 120 dB rms for 
non-pulse noise (e.g., vibratory pile driving), but below the 
aforementioned injury thresholds. Harbor seals and California sea lions 
are not known to haul-out close to the bridge; therefore, impacts from 
in-air pile driving noise are not applicable here.
    Estimated distances to NMFS current threshold sound levels from 
pile driving during the proposed action were derived using a practical 
spreading model (15 log R) and are outlined in Table 1 below. Distances 
to these thresholds will undergo acoustic sound source verification 
tests upon commencement of pile driving and may be adjusted 
accordingly.

[[Page 18162]]



                                 Table 1: Underwater distances to NMFS harassment threshold levels during pile driving.
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                                                                                                        Sound Levels (rms)
                   Pile Type                           Hammer Type       -------------------------------------------------------------------------------
                                                                                    190 dB                     160 dB                    120 dB
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24`` steel                                                       Impact              16.8 m (55 ft)        1,000 m (3,280 ft)                       n/a
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24`` steel                                                    Vibratory                         n/a                       n/a      16.4 km (10.2 miles)
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    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 river's 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 immediately 
within the 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.

Establishment of Safety Zone and Shut Down Requirements

    The isopleth for the Level A harassment (injury) threshold (190 dB 
re: 1 microPa) is modeled to be within 55 ft (16.8 m) of the impact 
pile hammer; however, Caltrans has proposed to delay impact pile 
driving should a marine mammal come within or approach 100 ft (30 m) of 
the pile being driven. Vibratory pile driving does not present source 
levels at or above NMFS' harassment threshold for Level A harassment 
(190 dB re 1 microPa); however, Caltrans will also employ a 30 m (100 
ft) safety zone to protect animals against physical harm from the 
equipment. Sound source verification tests will be conducted upon 
commencement of pile driving to verify acoustic models (see Acoustic 
Monitoring below).

Limited Use of Impact Hammer

    As a result of Endangered Species Act (ESA) section 7 consultation 
discussions with NMFS, Caltrans has agreed to drive all temporary piles 
with a vibratory hammer, to reduce impacts to listed fish, with the 
exception of one pile per day being ``proofed'' with an impact hammer. 
Proofing requires approximately 20-40 blows per pile, which equates to 
approximately one minute of impact hammering per day. This action would 
also serve to reduce impacts to marine mammals.

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 vibratory 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 would 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 of 100 ft (30 m). If any marine mammal is 
sighted within or approaching this shut down zone prior to pile-
driving, Caltrans will delay pile-driving until the animal has moved 
outside and on a path away from such zone or after 15 minutes have 
elapsed since the last sighting of the marine mammal.

Visual Monitoring

    Safety zone monitoring will be conducted during all active pile 
driving. Monitoring of the 100 ft (30 m) safety zone will be conducted 
by qualified, NMFS-approved, protected species observers (PSOs). Impact 
pile driving will not begin until the 100 ft safety zone is clear of 
marine mammals and will be stopped in the event that marine mammals 
enter the safety zone. For all pile driving, PSOs will monitor for 
marine mammals at least 30 minutes prior to, during, and 30 minutes 
post in-water pile driving. Monitoring could be conducted from small 
boats, as observation from a higher vantage point may not be practical. 
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. If a land based monitoring 
point can be found, PSOs would be stationed here. Observations will be 
made with binoculars during daylight hours. 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)

[[Page 18163]]

environmental conditions such as wind speed, wind direction, 
visibility, temperature, tide level, current, and sea state (described 
using the standard Beaufort sea scale).

Acoustic Monitoring

    Monitors will be present to conduct hydro-acoustic monitoring to 
empirically establish the 190 dB RMS (impulse) safety zone and 
behavioral harassment zones. Field measurements of sound pressure 
levels will be recorded and analyzed. A more detailed marine mammal 
monitoring plan and hydro-acoustic monitoring plan will be made by the 
monitoring contractor prior to the start of the Antioch Bridge seismic 
retrofit.

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 detail in NMFS' December 4, 2009 (74 FR 
67856), Federal Register notice, pile driving could result in 
harassment of 10 harbor seals and 10 California sea lions or 
approximately zero percent of each population. 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 and 238,000, respectively).
    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 Antioch 
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, 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 26, 2009, NMFS received a request from the Federal 
Highway Administration (FHWA) to initiate consultation under section 7 
of the ESA on Caltrans' proposed Antioch Bridge Seismic Retrofit 
Project as ESA-listed fish are present within the action area. NMFS 
issued a Biological Opinion (BiOp) on Caltran's Antioch Bridge Seismic 
Retrofit Project on August 13, 2009. The BiOp concluded that the 
proposed activities are not likely to jeopardize the continued 
existence of endangered Sacramento River Winter-run Chinook salmon, 
threatened CV Spring-run Chinook salmon, threatened CV steelhead, or 
threatened Southern DPS of North American green sturgeon, and is not 
likely to destroy or adversely modify designated or proposed critical 
habitat for these species.

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 permitted activities on the human environment. Based on 
the analyses in the EA, NMFS determined that issuance of the permit 
would not significantly impact the quality of the human environment and 
that preparation of an environmental impact statement was not required.

    Dated: April 1, 2010.
James H. Lecky,
Director,Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2010-8167 Filed 4-8-10; 8:45 am]
BILLING CODE 3510-22-S