[Federal Register Volume 76, Number 150 (Thursday, August 4, 2011)]
[Notices]
[Pages 47155-47176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19809]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XW30


Takes of Marine Mammals Incidental to Specified Activities; Pile-
Driving and Renovation Operations on the Trinidad Pier by the Cher-Ae 
Heights Indian Community of the Trinidad Rancheria in Trinidad, CA

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

ACTION: Notice; Issuance of an Incidental Take Authorization (ITA).

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulation, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the Cher-Ae Heights Indian 
Community of the Trinidad Rancheria (Trinidad Rancheria) to take small 
numbers of marine mammals, by Level B harassment, incidental to pile-
driving and renovation operations for the Trinidad Pier Reconstruction 
Project in Trinidad, California.

DATES: Effective August 1, 2011 through January 31, 2012.

ADDRESSES: A copy of the IHA is 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 or by telephoning the contacts listed 
here.

[[Page 47156]]

    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. The following 
associated documents are also available at the same internet address: 
``Biological Assessment, Trinidad Pier Replacement, Cher-Ae Heights 
Indian Community of the Trinidad Rancheria, May 2009'' and 
``Environmental Assessment for Issuance of an Incidental Harassment 
Authorization for Cher-Ae Heights Indian Community of the Trinidad 
Rancheria's Trinidad Reconstruction Project in Trinidad, California.'' 
Documents cited in this notice, may be viewed by appointment, during 
regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Howard Goldstein or Jolie Harrison, 
Office of Protected Resources, NMFS, 301-427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1361(a)(5)(D)) directs 
the Secretary of Commerce (Secretary) to allow, upon request, the 
incidental, but not intentional, taking of marine mammals for a period 
of not more than one year 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, if the taking is 
limited to harassment, a notice of a proposed authorization is provided 
to the public for review.
    Authorization for the incidental taking of small numbers of marine 
mammals 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 subsistence uses (where relevant). The authorization must 
set forth the permissible methods of taking, other means of effecting 
the least practicable impact on the species or stock and its habitat, 
and requirements pertaining to the mitigation, monitoring and reporting 
of such takings. 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 establishes a 45-day time limit 
for NMFS's 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 public comment period, NMFS must either issue or deny the 
authorization.
    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].

16 U.S.C. 1362(18).

Summary of Request

    On November 3, 2009, NMFS received a letter from the Trinidad 
Rancheria, requesting an IHA. After addressing comments from NMFS, a 
revised IHA application was submitted on July 23, 2010. On May 18, 
2011, NMFS published a notice in the Federal Register (76 FR 28733) 
disclosing the effects on marine mammals, making preliminary 
determinations and including a proposed IHA. The notice initiated a 30 
day public comment period.
    The requested IHA would authorize the take, by Level B (behavioral) 
harassment only, of small numbers of Pacific harbor seals (Phoca 
vitulina richardsi), California sea lions (Zalophus californianus), and 
Eastern Pacific gray whales (Eschrichtius robustus) incidental to pile-
driving and renovation operations on the Trinidad Pier. The Trinidad 
Pier has served the Trinidad Community for decades and continues to be 
one of the marine economic generators for the area. This project will 
not only address the structural deficiencies of the aged pier, but will 
completely remove the presence of creosote and other wood preservatives 
from Trinidad Bay and eliminate non-point source run-off with the 
construction of the new pier. The pile-driving and renovation 
operations will take place during August, 2011 to January, 2012, in 
Trinidad, California. Additional information on the Trinidad Pier 
Reconstruction Project is contained in the application and Biological 
Assessment (BA), which is available upon request (see ADDRESSES).

Description of the Specified Activities

    The Trinidad Pier, located on Trinidad Bay, is an antiquated 
structure that requires reconstruction in order to maintain public 
safety and to redress certain environmental deficiencies in the 
existing structure. The 165 m (540 ft) long pier is located on 
tidelands granted by the State of California to the City of Trinidad 
and leased by the Trinidad Rancheria. The project area consists of the 
pier (0.31 acres) and a nearby staging area (0.53 acres). The existing 
pier was constructed in 1946 to serve commercial fishing and 
recreational uses. Since that time, the creosote-treated wood piles 
which support the pier, as well as the wood decking, have deteriorated 
and are proposed to be replaced by cast-in-steel-shell (CISS) concrete 
piles and pre-cast concrete decking, respectively. This will improve 
the safety of the pier. Existing utilities that will require 
replacement include electrical water, sewer, and phone. Additional dock 
amenities that will be replaced including lighting, railing, four 
hoists, three sheds, a saltwater intake pipe used by Humboldt State 
University's (HSU) Telonicher Marine Laboratory, and a water quality 
sonde utilized by the Center for Integrative Coastal Observation, 
Research, and Education. The construction schedule is from August 1, 
2011, to May 1, 2012, however the pile-driving and removal activities 
potentially resulting in incidental take of marine mammals will occur 
from August 1, 2011, through January 31, 2012.

Background

    The Trinidad Pier is the northernmost oceanfront pier in California 
and has been used for commercial and recreational purposes over the 
last 50 years. Trinidad harbor and pier serve a fleet of commercial 
winter crab fishermen and year-round water angling for salmon, and 
nearshore/finfish species. Trinidad Pier was first built by Bob 
Hallmark in 1946. Since that time only minor maintenance activities 
have occurred on the pier. Today, Trinidad's economy is based on 
fishing and tourism and the pier supports these activities. The pier 
also provides educational opportunities by accommodating HSU's 
Telonicher Marine Lab's saltwater intake pipe, and the California 
Center of Integrated Technology's (CICORE) water quality sonde.
    Currently, the Trinidad Rancheria plays an important role in the 
economic development of the Trinidad area through three main business 
enterprises,

[[Page 47157]]

one of which is the Seascape Restaurant and the pier. The Cher-Ae 
Heights Indian Community of the Trinidad Rancheria is a federally-
recognized tribe composed of descendants of the Yurok, Weott, and 
Tolowa peoples. In 1906, the Trinidad Rancheria was established by a 
U.S. congressional enactment, and a congressional action authorized the 
purchase of small tracts of land for landless homeless California 
Indians. In 1908, through this Federal authority, 60 acres of land was 
purchased on Trinidad Bay to establish the Trinidad Rancheria. In 1917, 
the Secretary of the Interior formally approved the Trinidad Rancheria 
as a Federally Recognized Tribe.
    The community began developing in the 1950's. In January, 2000, the 
Trinidad Rancheria purchased the Trinidad Pier, harbor facilities, and 
the Seascape Restaurant. The Trinidad Rancheria leases a total area of 
14 acres in Trinidad Bay from the City of Trinidad. The Trinidad 
Rancheria currently operates the pier, and upland improvements 
including a boat launch ramp and the Seascape Restaurant. Funds for 
permitting and designs of the pier were granted to the Trinidad 
Rancheria by the California State Coastal Conservancy.
    The purpose of the Trinidad Pier Reconstruction Project is to 
correct the structural deficiencies of the pier and improve pier 
utilities and safety for the benefit of the public, and indirectly 
improve the water quality conditions and provide additional habitat for 
the biological community in the area of special biological significance 
(ASBS). Currently, it is difficult to ensure the continued safety of 
the pier due to excessive deterioration of the creosote-treated Douglas 
fir piles and the pressure treated decking.

Pier Construction Overview

    Summary plans for the pier and staging area are presented in 
Appendix A of the IHA application. Pier improvements will replace at a 
one-to-one ratio, approximately 1,254 m\2\ (13,500 ft\2\) of the pre-
cast concrete decking. In addition, the project includes installation 
of 115 concrete piles (and removal of 205 piles) including batter and 
moorage piles (45.7 cm or 18 inches [in] in diameter), four hoists, 
standard lights, guardrail, and dock utility pipes including water, 
power, and telephone. A new stormwater collection system will also be 
incorporated into the reconstructed pier design. The new CISS concrete 
piles will be separated at 1.5 m (5 ft) intervals along 7.6 m (25 ft) 
long concrete bents. A total of 22 bents separated 7.6 m (25 ft) apart 
shall be used. The decking of the new pier will be constructed of pre-
cast 6.1 m (20 ft) long concrete sections. The new pier will be 164.6 m 
(540 ft) long and 7.3 to 7.9 m (24 to 26 ft) wide, corresponding to the 
existing footprint.
    A pile bent will be installed at the existing elevation of the 
lower deck to provide access to the existing floating dock. The 
existing stairs to the lower deck will be replaced with a ramp that is 
ADA compliant. The decking of the pier will be constructed at an 
elevation of 6.4 m (21 ft) above Mean Lower Low Water (MLLW). The top 
of the decking will be concrete poured to create a slope for drainage 
and to incorporate a pattern and a color into the concrete surface in 
order to provide an aesthetically pleasing appearance. An open 
guardrail, 1.1 m (3.5 ft) in height shall be constructed of tubular 
galvanized steel rail bars (approximately 1.9 cm [\3/4\ in] diameter) 
uniform in shape throughout the length of the pier. Lighting will be 
installed in the decking (and railing in the landing area) along the 
length of the pier and will be focused and directed to minimize 
lighting of any surfaces other than the pier deck.
    Currently there are four hoists on the pier. Three of the hoists 
are used to load and unload crab pots from the pier and the fourth 
hoist located at the end of the pier is suited to load and unload 
skiffs. The hoists are approximately 30 years old and may have had the 
Yale motors replaced since the time they were installed. The hoists 
shall be re-installed at points corresponding to their current location 
and their current duties. All design specifications shall conform to 
the Uniform Building Code.

Pier Demolition Methods

    Removal of the existing pier and construction of the new pier shall 
occur simultaneously. Construction shall begin from the north (shore) 
end of the pier. All pier utilities and structures shall first be 
removed. Utilities to be removed include water, electrical, power and 
phone lines, temporary bathroom, ladders, and pier railing. Structures 
to be removed include four hoists, two wood sheds, HSU's 20 horse-power 
(hp) (14.9 kiloWatt [kW]) pump and saltwater intake pipes, CICORE's 
water quality sonde, and a concrete bench. Then the existing pressure 
treated decking, joists, and bent beams shall be removed and 
transported by truck to the upland staging area for temporary storage.
    All existing piles located in the section of pier being worked on 
(active construction area) will then be removed by vibratory 
extraction, unless some are broken in the process. Vibratory extraction 
is a common method for removing both steel and timber piling. The 
vibratory hammer is a large mechanical device mostly constructed of 
steel that is suspended from a crane by a cable. The vibratory hammer 
is deployed from the derrick and positioned on the top of the pile. The 
pile will be unseated from the sediment by engaging the hammer and 
slowly lifting up on the hammer with the aid of the crane. Once 
unseated, the crane will continue to raise the hammer and pull the pile 
from the sediment. When the bottom of the pile reaches the mudline, the 
vibratory hammer will be disengaged. A choker cable connected to the 
crane will be attached to the pile, and the pile will be lifted from 
the water and placed upland. This process will be repeated for the 
remaining piling. Extracted piling will be stored upland, at the 
staging area, until the piles are transferred for upland disposal. Each 
such extraction will require approximately 40 minutes (min) of 
vibratory hammer operation, with up to five piles extracted per day (a 
total of 3.3 hours per day). Operation of the vibratory hammer is the 
primary activity within the pier demolition group of activities that is 
likely to affect marine mammals by potentially exposing them to both 
in-air (i.e., airborne or sub-aerial) and underwater noise.
    Douglas fir pilings are prone to breaking at the mudline. In some 
cases, removal with a vibratory hammer is not possible because the pile 
will break apart due to the vibration. Broken or damaged piling can be 
removed by wrapping the individual pile with a cable and pulling it 
directly from the sediment with a crane. If the pile breaks between the 
waterline and the mudline it will be removed by water jetting. Water 
jetting would potentially be performed by divers working around the 
base of the piles and is not expected to have the potential to result 
in incidental take of marine mammals.
    A floating oil containment boom surrounding the work area will be 
deployed during creosote-treated timber pile removal. The boom will 
also collect any floating debris. Oil-absorbent materials will be 
deployed if a visible sheen is observed. The boom will remain in place 
until all oily material and floating debris has been collected. Used 
oil-absorbent materials will be disposed of at an approved upland 
disposal site. The contractor shall also follow Best Management 
Practices (BMPs): NS-14--Material Over Water, NS-15--Demolition 
Adjacent to Water, and WM-4--Spill Prevention and Control listed in the 
California

[[Page 47158]]

Stormwater Quality Association (CASQA) Handbook.
    The existing Douglas-fir piles are creosote treated. The depth of 
creosote penetration into the piles varies from 0.6 to 5.1 cm (0.25 to 
2 in). Creosote is composed of a mixture of chemicals that are 
potentially toxic to fish, other marine organisms, and humans. 
Polycyclic aromatic hydrocarbons (PAH), phenols and cresols are the 
major chemicals in creosote that can cause harmful health effects to 
marine biota. The replacement of the creosote treated piles with CISS 
concrete piles is expected to eliminate potential contamination of the 
water column by PAH, phenols and cresols from the existing treated wood 
piles.
    All removed piles shall be temporarily stored at the upland staging 
areas until all demolition activities are complete (approximately 6 
months). Following the cessation of demolition activities, the creosote 
treated piles will be transported by the Contractor to Anderson 
Landfill in Shasta County. This landfill is approved to accept 
construction demolition, wood wastes, and non-hazardous/non-designated 
sediment.
    The pressure treated 2x4 in Douglas-fir decking will also be stored 
at the staging area until demolition is complete. The partially 
pressure treated decking and railing may be reused and will be kept by 
the Trinidad Rancheria for potential future use.

Pile Installation

    Design--Two 45.7 cm (18 in) diameter battered piles, which are 
designed to resist lateral load, will be located on each side of the 
pier at 12:1 slopes. Three vertical piles, which are designed to 
support 50 tons of vertical loads, will be located between the battered 
piles separated 1.5 m (5 ft) apart.
    Overview--New piles will be installed initially from shore and 
then, as construction proceeds, from the reconstructed dock. Following 
removal of each existing pile, steel casings will be vibrated (using a 
vibratory hammer) to a depth of approximately 0.8 m (2.5 ft) above the 
top elevation of the proposed pile (7.6 to 10.7 m [25 to 35 ft] below 
the mudline). The steel shell of 1.9 cm (\3/4\ in) thickness shall 
extend from above the water surface to below the upper layer of 
sediment, which consists of sand, into the harder sediment, which 
consists mostly of weathered shale and sandstone. The steel shell will 
be coated with polymer to protect the casings from corrosion. The steel 
shell will be coated with polymer to protect the casings from 
corrosion. The steel shell shall be used to auger the holes and will 
then be cleaned and concrete poured using a tremie to seal the area 
below the shell. The shell will then be dewatered and a steel rebar 
cage installed prior to pouring concrete to fill the shell. These steps 
are described in further detail below.
    Pile Excavation--Following installation of the steel casing, each 
hole will be augered to the required pile depth of 7.6 to 10.7 m (25 to 
35 ft) below the mudline. An auger drill shall be used to excavate the 
sediment and rock from the steel shell. Geotechnical studies (Taber, 
2007) indicate that the material encountered in the test borings can be 
excavated using typical heavy duty foundation drilling equipment. 
Driving the new piles and augering the holes are the primary activities 
within the pile installation group of activities most likely to result 
in incidental harassment of marine mammals by potentially exposing them 
to underwater and in-air noise.
    Steel casing member of 1.9 cm (\3/4\ in) thickness shall be used to 
form the CISS concrete foundation columns in underwater locations. In 
this technique, inner and outer casings are partially imbedded in the 
ground submerged in the water and in concentric relationship with one 
another. The annulus formed between the inner and outer casings is 
filled with water and cuttings, while the inner casing is drilled to 
the required depth, and the sediment is removed from the core of inner 
steel casing. Following removal of the core, the outer casing is left 
in place as the new pile shell.
    The sediment and cuttings excavated shall be temporarily stockpiled 
in 50 gallon drums (or another authorized sealed waterproof container) 
at the staging area until all excavations are complete and then 
transferred for upland disposal at the Anderson Landfill or another 
approved upland sediment disposal site.
    The existing piles extend to approximately 6.1 m (20 ft) below the 
mudline. Each one of the existing 0.3 m (1 ft) diameter pile has 
displaced 0.4 m\3\ (15.7 ft\3\) of sediment. There are approximately 
205 wood piles to be removed. The total amount of sediment displaced by 
the existing piles is approximately 91.7 m\3\ (3,238.4 ft\3\). Each of 
the proposed CISS piles requires the displacement of approximately 1.5 
m\3\ (53 ft\3\) of sediment. There are 115 CISS piles to install. A 
total of approximately 172 m\3\ (6,074 ft\3\) of sediment would have to 
be removed in order to auger 115 holes to a depth of 9.1 m (30 ft) 
below the mudline. It is estimated that 7.6 to 76.5 m\3\ (268.4 to 
2,701.5 ft\3\) would have to be removed during pile installation. Many 
new holes will be augered in the location of existing piles where they 
overlap. As a result, less sediment will be required to be removed than 
would be required for the construction of a new pier, however, the 
exact location and penetration of the old piles is not recorded and 
will be determined during reconstruction activities. Therefore, a range 
of quantity of material to be removed is specified. Existing holes 
created by old wood piles removed and that do not overlap with the 
location of holes augered for the new piles will collapse and naturally 
fill with adjacent sediment.
    Most of the sediment excavated is expected to be in the form of 
cuttings if the hole is augered and/or drilled at a location of exiting 
piles. Sediment removed from the inner core during augering shall be 
mostly dry due to the compression created in the core during augering. 
Approximately fifty 50-gallon drums will be used to store the cuttings 
and sediment prior to disposal upland. The contractor shall implement 
BMPs WM-3--Stockpile Management, WM-4--Spill Prevention and Control, 
and WM-10--Liquid Waste Management listed in the CASQA Handbook (see 
the handbook for details at: http://www.cabmphandbooks.com/Development.asp).
    Concrete Seal Installation--A tremie (i.e., a steel pipe) will be 
used to seal the bottom 0.9 m (3 ft) of the hole below the bottom of 
the steel shell and above the ground. Before the tremie seal is poured, 
the inside walls of the pile will be cleaned by brushing or using a 
similar method of removing any adhering soil or debris in order to 
improve the effectiveness of the seal. A ``cleaning bucket'' or similar 
apparatus will be used to clean the bottom of the excavation of loose 
or disrupted material.
    The tremie is a steel pipe long enough to pass through the water to 
the required depth of placement. The pipe is initially plugged until 
placed at the bottom of the holes in order to exclude water and to 
retain the concrete, which will be poured. The plug is then forced out 
and concrete flows out of the pipe to its place in the form without 
passing through the water column. Concrete is supplied at the top of 
the pipe at a rate sufficient to keep the pipe continually filled. The 
flow of concrete in the pipe is controlled by adjusting the depth of 
embedment of the lower end of the pipe in the deposited concrete. The 
upper end may have a funnel shape or a hopper, which facilitates 
feeding concrete to the tremie. Each concrete

[[Page 47159]]

seal is expected to cure within 24 to 48 hours.
    Dewatering Methodology--After the tremie seal has been poured, the 
water will be pumped out of the steel shells, which will act as a 
cofferdam. Pumping within the excavation at the various footings may be 
required to maintain a dewatered work area.
    The contractor shall test the pH of the water in each casing one 
day following pouring of the tremie seal to insure that the pH of the 
water did not change from the ambient pH. The water shall then be 
pumped into 50-gallon drums and transported to the staging area for 
discharge through percolation to eliminate solids. Should the pH of the 
water change from ambient pH, then the contractor shall haul the water 
to the Eureka Wastewater Treatment Plant for treatment prior to 
discharge. The contractor is expected to dewater a volume of 
approximately 450 gallons (1,720 L) each day during pile installation. 
For the installation of 115 piles, approximately 49,500 gallons 
(197,800 L) will be dewatered and discharged at the appropriate 
location at the staging area. Percolation rates will be verified prior 
to discharge of the ocean water at the designated location at the 
staging area, but are not expected to be prohibitive due to the sandy 
texture of the soil. The Contractor shall implement BMP WM-10 Liquid 
Waste Management as listed in the CASQA Handbook. Liquid waste 
management procedures and practices are used to prevent discharge of 
pollutants to the storm drain system or to watercourses as a result of 
the creation, collection, and disposal of non-hazardous liquid wastes. 
WM-10 provides procedures for containing liquid waste, capturing liquid 
waste, disposing liquid waste, and inspection and maintenance.
    Completion--Following dewatering of the steel shells, steel rebar 
cages shall be inserted into each shell. Ready-mix concrete placed into 
the drilled piers shall be conveyed in a manner to prevent separation 
or loss of materials. The cement-mixer truck containing the concrete 
shall be located on land adjacent to the north end of the pier. The 
concrete shall be pumped to the borings through a pipe (at least 0.9 cm 
[\3/4\ in] thick) that will span the length of the pier. When pouring 
concrete into the hole, in no case shall the concrete be allowed to 
freefall more than 1.5 m (5 ft). Poured concrete will be dry within at 
least 24 hours and completely cured within 30 days.
    A concrete washout station shall be located in the staging area at 
the designated location. The contractor shall implement BMP, WM-8--
Concrete Waste Management, as listed in the CASQA Handbook to prevent 
discharge of liquid or solid waste.

Pier Deck Construction

    Following the installation of the concrete piles, pre-cast concrete 
bent caps measuring 7.6m (25 ft)-long shall be installed on top of each 
row of pilings. The concrete bents act to distribute the load between 
the piles and support the pier.
    Pre-cast 6.1m (20 ft)-long concrete sections shall be used for the 
decking. An additional layer of concrete shall be poured following 
installation of the precast sections. The layer of concrete will allow 
the decking of the pier to be sloped to the west for drainage purposes 
and to create an aesthetically pleasing decking. The surface of the 
decking will be colored and contain an earth tone pattern to match the 
surrounding environment.

Utilities

    Utilities located on the pier will require location during 
construction and replacement following construction of the pier 
footings and decking. Utilities include:
    Power: A 2 in PG&E power line that is currently attached to the 
west side of the pier and PG&E electrical boxes located along the west 
side of the pier.
    Sewer: Currently there are no sewer pipes on the pier. Visitors to 
the pier are served by a temporary restroom located on the south side 
of the pier. No direct sewer discharge is allowed in the ASBS.
    New utilities installed include water, phone, and electrical. New 
pier utilities will be constructed along the east and west side of the 
pier and will be enclosed within concrete utility trenches. Water pipes 
shall be routed along both sides of the pier to several locations along 
the pier. Phone lines shall be routed along the west side of the pier. 
All electrical switches will be located in one central box towards the 
west end of the pier by the loading and unloading landings location.
    Lighting installed along the pier shall be designed to improve 
visibility and safety. The lighting will be embedded in the decking and 
railing of the pier to minimize light pollution from the pier. Lighting 
shall be designed to minimize light pollution by preventing the light 
from going beyond the horizontal plane at which the fixture is 
directed. Currently, there are lighting poles on the pier. The proposed 
lighting on the pier will be embedded on the west and east side of the 
decking separated approximately 7.6 m (25 ft) throughout the length of 
the pier. The lighting fixtures will have cages for protection matching 
the color of the railing. In addition, on the south side of the pier, 
lighting will be installed in the railing to provide lighting for the 
working area on the deck of the pier.
    Fish cleaning does not occur at the pier. This activity was 
formerly pursued by recreational users and was discontinued in 2006 due 
to water quality concerns.

Drainage

    There is currently no runoff collection system on the pier. Runoff 
drains from the existing pier directly into the ASBS. A storm water 
outfall for the City of Trinidad is located near the base of the pier.
    The pier decking shall be sloped to the west in order to direct 
runoff from the pier to the stormwater collection pipe. The runoff 
shall be routed along the west side of the pier and conveyed by gravity 
to a new upland manhole and storm chamber containing treatment media. 
All stormwater will be infiltrated within the storm chamber; there will 
be no discharge from the system. See Appendix C, drawings C-5 to C-8 of 
the IHA application, for details of the conveyance and treatment 
system. The pier-deck construction, utility replacement, and drainage 
improvements are anticipated to result in discountable effects to 
marine mammals.

BMPs

    Pier Demolition Methods:
     Waters shall be protected from incidental discharge of 
debris by providing a protective cover directly under the pier and 
above the water to capture any incidental loss of demolition or 
construction debris.
     A floating oil containment boom surrounding the work area 
will be used during the creosote-treated timber pile removal. The boom 
will also collect any floating debris. Oil-absorbent materials will be 
employed if a visible sheen is observed. The boom will remain in place 
until all oily material and floating debris has been collected and 
sheens have dissipated. Used oil-absorbent materials will be disposed 
of at an approved upland disposal site.
     All removed piles shall be temporarily stored at the 
upland staging areas until all demolition activities are complete 
(approximately 6 months).
     Following the cessation of demolition activities, the 
creosote treated piles will be transported by the Contractor to an 
upland landfill approved to accept such materials.
     The pressure treated 2 x 4 in Douglas fir decking will 
also be stored in the staging area until demolition is

[[Page 47160]]

complete. The partially pressure treated decking and railing may be 
reused and will be kept by the Trinidad Rancheria for further use.
     The contractor shall also follow BMPs: NS-14--Material 
Over Water, NS-15--Demolition adjacent to Water, and WM-4--Spill 
Prevention and Control listed in the CASQA Handbook.
    Pile Installation:
     The sediment and cuttings excavated shall be temporarily 
stockpiled in 50 gallon (189 L) drums (or another authorized sealed 
waterproof container) at the staging area until all excavations are 
complete and then transferred for upland disposal at the Anderson 
Landfill or another approved upland sediment disposal site.
     The contractor shall implement BMPs WM-3--Stockpile 
Management, WM-4--Spill Prevention and Control, and WM-10--Liquid Waste 
Management listed in the CASQA Handbook.
     The contractor shall test the pH of the water in each 
casing one day following pouring of the tremie seal to insure that the 
pH of the water did not change by more than 0.2 units from the ambient 
pH. The water shall then be pumped into 50-gallon drums and transported 
to the staging areas for discharge through percolation to eliminate 
solids. Should the pH of the water change from ambient pH, then the 
contractor shall haul the water to the Eureka Wastewater Treatment 
Plant for treatment prior to discharge.
     The contractor shall implement BMP WM-10 Liquid Waste 
Management as listed in the CASQA Handbook. Liquid waste management 
procedures and practices are used to prevent discharge of pollutants to 
the storm drain system or to watercourses as a result of the creation, 
collection, and disposal of non-hazardous liquid wastes. WM-10 provides 
procedures for containing liquid waste, capturing liquid waste, 
disposing liquid waste, and inspection and maintenance.
     A concrete washout station shall be located in the staging 
area at the designated location. The contractor shall implement BMP, 
WM-8--Concrete Waste Management, as listed in the CASQA Handbook to 
prevent discharge of liquid or solid waste.
    Pier Construction:
     No concrete washing or water from concrete will be allowed 
to flow into the ASBS and no concrete will be poured within flowing 
water.
     Waters shall be protected from incidental discharge of 
debris by providing a protective cover directly under the pier and 
above the water to capture any incidental loss of demolition or 
construction debris.
    Utilities:
     Lighting will be embedded in the decking and railing of 
the pier to minimize light pollution from the pier. Lighting shall be 
designed to minimize light pollution by preventing the light from going 
beyond the horizontal plain at which the fixture is directed so the 
light is directed upwards.
    Drainage:
     The pier decking shall be sloped to the west in order to 
direct runoff from the pier to the stormwater collection pipe. The 
runoff shall be routed along the west side of the pier and conveyed by 
gravity to a new upland manhole and storm chamber containing treatment 
media. Drainage from the storm chamber shall not be conveyed to 
Trinidad Bay, but will entirely be infiltrated within the storm 
chamber. See Appendix A, drawings C-5 to C-8, for details.
    Construction Timing and Sequencing:
     Noise-generating construction activities, including 
augering, pile removal, pile placement, and concrete pumping, will only 
be allowed from 7 a.m. to 7 p.m. These hours shall be further 
restricted as necessary in order for Protected Species Observers (PSOs) 
to perform required observations.
    Project Benefits:
    The existing pier has pole lighting that illuminates the water 
surface; the proposed pier has lighting designed to avoid such 
illumination. The existing pier has dark wood and over 200 piles. The 
proposed pier, with 205 piles to be removed and 115 piles to be 
installed and a white concrete construction, will result in less 
shading of nearshore habitat. The project may have benefits to 
environmental resources other than marine mammals. This notice 
describes in detail BMPs that will be implemented for the project. The 
BMPs are focused almost exclusively on protecting water quality, and 
while they may have ancillary benefits to some marine resources such as 
Essential Fish Habitat (EFH), they are not intended to serve as 
monitoring and mitigation measures for adverse effects to marine 
mammals. The only exception might be the ability to further modify 
noise timing restrictions to allow PSOs to perform their duties.
    Additional details regarding the pile-driving and renovation 
operations for the Trinidad Pier Reconstruction Project can be found in 
the Trinidad Rancheria's IHA application and BA, as well as the U.S. 
Army Corps of Engineers (ACOE) and NMFS EA. The IHA application, BA, 
and ACOE and NMFS EA can also be found online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

Dates, Duration, and Specific Geographic Area

    The Trinidad Pier Reconstruction Project is located in the city of 
Trinidad, California, Humboldt County, at Township 8N, Range 1W, 
Section 26 (41.05597[deg] North, 124.14741[deg] West) (see Figure 2-1 
of the BA). The construction schedule is from August 1, 2011 to May 1, 
2012, with noise and activity effects requiring an IHA, occurring from 
August 1, 2011 through January 31, 2012.
    Trinidad Bay is a commercial port located between Humboldt Bay and 
Crescent City. The bay contains numerous vessel moorings which include 
permanent commercial vessel anchors as well as 100 moorings that are 
placed for recreational vessel owners (Donahue, 2007). The uplands have 
residential, commercial and recreational land use classifications. The 
Trinidad Pier parcel was owned by the State of California, but was 
granted to the City of Trinidad which leases the tidelands to the Cher-
Ae Heights Indian Community of the Trinidad Rancheria. The parcels to 
be used for the staging area are owned by Trinidad Rancheria, the City 
of Trinidad, and the U.S. Coast Guard.
    Trinidad Bay is a shallow, open bay about 0.8 km (0.5 mi) deep (in 
the southwest-northeast direction) and 1.6 km (1 mi) wide (in the 
northwest-southeast direction). Figure 1 of the IHA application shows 
the whole bay. Generally the bay shelves at a moderate slope to about 
9.1 m (30 ft) depth and then flattens out, with most of the outer bay 
between 9.1 to 15.2 m (30 to 50 ft) deep. Substrates in the bay include 
rock, cobble, gravel and sand. The floor of the bay is irregular with 
some areas of submerged rock. The project area comprises the 0.31 acre 
pier over marine habitats and a staging area (the gravel parking lot 
located west of the pier) covering 0.53 acres of upland area.

Construction Timing and Sequencing

    The project is expected to be completed within nine months 
(approximately six months of loud noise-producing activities). 
Reconstruction of the pier is planned to commence on August 1, 2011 and 
terminate on May 1, 2012. Excluding weekends and holidays, a total of 
217 working days will be available for work during this period. During 
the winter months (November to March) severe weather conditions are 
expected to occur periodically at the project site. The contractor may 
have to halt the

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work during pile installation due to strong winds, large swells, and/or 
heavy precipitation. Construction during the remainder of the year 
should not be impeded by large swells, but may be halted due to strong 
winds or precipitation; however, Trinidad Harbor is a sheltered area 
and does not often experience severe weather that would preclude the 
work. The contractor will work five days per week from 7 a.m. to 7 p.m. 
Should severe weather conditions cause delays in the construction 
schedule, the contractor will work up to seven days per week as needed 
to ensure completion by May 1, 2012.
    Removal of all existing piles and decking and construction of the 
new pier will occur simultaneously. The existing decking and piles will 
be removed and new piles installed from the reconstructed pier. Pile 
bents will be separated 7.6 m (25 ft) apart. Following the installation 
of two successive pile bents, a new precast concrete deck section shall 
be installed. The contractor shall continue in this manner from the 
north end (shore) to south end (water terminus) of the existing pier.
    The contractor is expected to spend approximately six months 
(August through January) on pile removal and installation and the 
remaining three months (February through April) on deck and utilities 
reconstruction. It is estimated that each boring can be lined with a 
pile and excavated within 6 to 8 hours. Pouring of the concrete seals 
is expected to take approximately two hours for each pile. The 
contractor is expected to remove an existing pile and install one new 
steel shell and pour a concrete seal each day, with a total of six to 
eight hours required for the process (i.e., 115 piles to be placed [one 
per day] during 115 days of work or 23 weeks of 5 days each). The final 
pour of the concrete piles is expected to take approximately two hours 
to fill the steel shells and is expected to cure within one week.
    It is expected that reconstruction of one row of piles and bents 
will take one week. Pile and bents will be installed over a 
discontinuous period of approximately 23 weeks. A new pre-cast concrete 
section of decking will be installed following the installation of two 
successive rows of piles and associated bents. The last 3 months will 
be used for pouring of the top layer of the decking and utilities 
construction.

Action Area

    The action area is defined as all areas directly or indirectly 
affected by the proposed action. Direct effects of the action are 
potentially detectable in all lands and aquatic areas within the 
project area, including the staging area. The project would also 
directly affect 7.9 m (26 ft) of the Trinidad Bay shoreline.
    In-air (i.e., sub-aerial) and underwater sound effects would be the 
most laterally extensive effects of the action and thus demarcate the 
limits of the action area. Assuming that underwater sound attenuates at 
a rate of -4.5 dB re 1 [micro]Pa (rms) for each doubling of distance, 
underwater sound from pile-driving (detailed in Section 6 of the BA) 
would elevate noise above 120 dB (rms) up to 800 m (2,625 ft) (the Port 
of Anchorage measured 168 dB re 1 [micro]Pa [rms] at a distance of 20 m 
from a pile, application of the practical spreading model with 4.5 dB 
attenuation for doubling of distance yields 120 dB [rms] at 800 m) 
seaward in all areas on a line-of-sight to the pier (Illingworth & 
Rodkin, 2008). The rationale for use of 120 dB (rms) as a metric is 
detailed in Section 6.6.1 of the BA, but also has a practical value 
because 120 dB (rms) is the lowest threshold currently used to detect 
underwater sound effects to any of the animals discussed in this 
analysis. Actual ambient underwater sound levels are probably quite 
variable in response to sound sources such as wave action and fishing 
vessel traffic. The assumptions regarding in-air and underwater noise 
in the IHA application, BA, and in this notice are generally regarded 
as extremely conservative.
    In-air (or sub-aerial) sound would be generated by equipment used 
during construction; the loudest source of such sound would be 
vibratory pile-driving, which generates a sound intensity of 
approximately 104 dB at 15.2 m (50 ft) (FHWA, 2006). Assuming an 
ambient background noise level of 59 dB, typical of residential 
neighborhoods, and a sound attenuation rate of 7.5 dB (rms) for each 
doubling of distance, the action area for aerial sound would extend 
975.4 m (3,200 ft) in an unobstructed landward direction from the dock. 
The action area would extend farther in a seaward direction, because 
aerial sound attenuates with distance more slowly over water and also 
because ambient noise levels are potentially quieter in that direction. 
Assuming an attenuation rate of 6 dB (rms) for each doubling of 
distance and an ambient marine noise background of 50 dB, the action 
area for above-water effects would extend 7.7 km (4.8 mi) seaward from 
the pier.
    The seaward attenuation rate assumes no environmental damping or 
attenuation and thus is produced by a simple inversion square law. The 
landward attenuation rate assumes a low level of environmental damping 
due to non-forest vegetation, structures, topography, etc. and 
corresponds to the rate recommended by WSDOT (2006) for terrestrial in-
air in non-forest environments. The 59 dB and 50 dB estimates are based 
on EPA (1971), a standard source of data on typical background sound 
levels (in dBA) for various environments. These typical levels were 
revised upwards by approximately 3 dB because the dBA curve down-
weights sound intensity at the lower frequencies typical of vibratory 
pile-driving noise, which is the principal source of noise considered 
in demarcation of an action area for the action. Thus the 59 dB and 50 
dB values represent unweighted estimates of background sound levels.
    The IHA application and BA provide a detailed explanation of the 
Trinidad Pier Reconstruction Project location as well as project 
implementation.
    NMFS outlined the project in a previous notice for the proposed IHA 
(76 FR 28733, May 18, 2011). The activities to be conducted have not 
changed between the proposed IHA notice and this final notice 
announcing the issuance of the IHA. For a more detailed description of 
the authorized action, including reconstruction operations and acoustic 
source specifications, the reader should refer to the proposed IHA 
notice (76 FR 28733, May 18, 2011), the IHA application and associated 
documents referenced above this section.

Comments and Responses

    A notice of proposed IHA was published in the Federal Register on 
May 18, 2011 (76 FR 28733). During the 30-day public comment period, 
NMFS received comments from the Marine Mammal Commission (Commission) 
only. The Commission's comments are online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Following are the 
Commission's comments and NMFS's responses:
    Comment 1: The Commission recommends that the NMFS defer issuance 
of the IHA until it has required the applicant to develop a more 
realistic estimate of the number of harbor seal takes that:
    (1) Accounts for all harbor seal haul-out sites in the area;
    (2) Corrects seal abundance estimates to account for seals in the 
water during the counts;
    (3) Incorporates a more realistic assessment of the portion of 
seals that will enter the water in the Level B harassment zone during 
the proposed construction operations;

[[Page 47162]]

    (4) Includes a reasoned basis for estimating takes that occur from 
in-air construction sound; and
    (5) Is based on a realistic estimate of the time required to remove 
205 wood piles.
    Response: (1) NMFS and Trinidad Rancheria believe that the action 
described does account for all harbor seal haul-out sites in the action 
area. The Commission indicates that they believe that harbor seals 
hauling out within 50 km (31.1 mi) of the site are likely to be present 
in the action area. Goley et al. (2007) state, in literature review, 
that the seals are year-round residents; that they are non-migratory, 
dispersing from a centralized location to forage; and that they exhibit 
high site fidelity, utilizing one to two haul-out sites within their 
range and rarely traveling more than 25 to 50 km (15.5 to 31.1 mi) from 
these haul-outs. If it is not shown that these seals use any other 
haul-outs, then there is no other logical conclusion that that these 
seals must be Trinidad Bay residents. The Commission's proposition that 
seals from elsewhere would enter Trinidad Bay, which already has a 
large resident seal population, to forage, is interesting but not 
corroborated by any data. Moreover, even if true, it is not apparent 
that it affects the analyses in this document, since there is no basis 
for inference about the frequency or duration of such activity.
    Also, the assessment is based upon a personal communication with 
Dawn Goley and Trinidad Rancheria representatives, specifically, a 
telephone conversation on March 23, 2009, when she observed that the 
Humboldt Bay seals show high site fidelity for sandy beach haul-outs, 
whereas the Trinidad Bay and Patrick's Point seals have corresponding 
fidelity for rocky haul-outs. Data supporting this inference was not 
discussed.
    Dawn Goley has stated that it is unknown whether there is 
interchange between the Patrick's Point and Trinidad Bay seals. Data 
that would allow a conclusive determination on this point, such as 
genetic or radio/acoustic tracking studies, have not been gathered. 
However, Goley et al. (2007) do state (page 10) that ``harbor seals 
exhibit high site fidelity, utilizing one to two haul-out sites within 
their range (Sullivan 1980, Pitcher et al., 1981; Stewart et al., 
1994), rarely traveling more than 25 to 50 km from these haul-outs 
(Brown and Mate, 1983; Suryan and Harvey, 1998). Movements between and 
the use of alternate haul-out sites has been attributed to the use of 
alternative foraging areas near their new haul-out site (Thompson et 
al., 1996b; Lowry et al., 2001) and the seasonal use of certain haul-
out sites for pupping and molting (Herder, 1986; Thompson et al., 
1989). Based on the fact that the Palmer's Point and Trinidad Bay haul-
outs are close to each other (9 km or 5.6 mi) compared to the foraging 
areas used by harbor seals, and that the Patrick's Point area is home 
to approximately 1,000 harbor seals (Dawn Goley, pers. comm., March 23, 
2009), a far larger grouping than the one found at Trinidad Bay, and 
given that observations of harbor seals at Trinidad Bay go through 
strong seasonal fluctuations, it is not appropriate to dismiss a 
hypothesis that there is interchange between the two areas. If the 
seals do seasonally vacate Trinidad Bay for alternative foraging 
grounds, then Patrick's Point is their most likely alternative haul-
out.
    It does not follow that the Patrick's Point seals vacate that area 
to forage in Trinidad Bay, as shown by the fact that seal numbers in 
Trinidad Bay decline during the winter; if the area were increasingly 
used by Patrick's Point seals during the winter months, then counts of 
seals at Trinidad Bay would increase. They likely do not. Goley et al. 
(2007) state that harbor seals ``are typically less abundant during the 
winter months as seals tend to spend more time foraging at sea during 
this time.'' In this context ``at sea'' and ``offshore'' are 
interpreted as equivalent and neither term is numerical. The seals are 
not in Trinidad Bay and are therefore offshore.
    (2) The Commission cites a correction factor of 1.54 for harbor 
seals at sea, and contends that this requires a 50% increase in the 
estimate of incident take. NMFS and the Trinidad Rancheria addressed 
the use of this correction factor in the notice of proposed IHA in 
response to previous Commission comments.
    Note that the notice of proposed IHA does not state that harbor 
seals spend 10% of their time in the water, but states that they spend 
10% of their time within the radius of effect. The radius of effect is 
only a small fraction of Trinidad Bay, and only a fraction of the rocks 
that comprise the Indian Beach haul-out of Goley et al. (2007) are 
within that radius of effect.
    Lowry et al. (2008) present a discussion of correction factors. 
They used a correction factor of 1.65, indicating that about 40% of 
seals were hauled-out. They also note that their study was performed at 
a time when the largest possible fraction of seals would likely be 
hauled-out--during the molt, and at local low tides. The proposed work, 
however, would be performed after the molt had concluded. The 
correction factor suggested by the Commission of 1.54 is not 
significantly different from that determined by Lowry et al. (2008) and 
may also be used; this correction factor is therefore used in the 
estimate of potential harbor seal take presented below in this 
document.
    (3) The Commission states that Trinidad Rancheria's action will 
incidentally take marine mammals many kilometers out to sea, where the 
underwater sound generated by the renovation operations would only 
slightly exceed ambient (background) noise levels and would be far less 
audible than other episodic anthropogenic sound sources such as the 
passage of deep-draft vessels. NMFS and the Trinidad Rancheria regard 
the potential for take of animals outside of Trinidad Bay as unlikely 
due to sound attenuation, other background sound sources (e.g., waves, 
wind, rain, etc.), and resident harbor seal habituation to the existing 
marine acoustic environment.
    Analysis regarding the effects of underwater sound was presented in 
the revised IHA application dated July 23, 2010, and presents figures 
indicating the area of potential effect for Level B harassment (see 
Table 4 ``Noise generating activities'' and ``Potential for Biological 
Effects'' section below [Table 4 of the IHA application]). Based on 
this analysis and the foregoing discussion of seal use of Trinidad Bay, 
it is anticipated that behavioral effects could result to all seals 
that were in the water within Trinidad Bay during the portion of the 
day when in-water noise was being generated by pile-removal, augering, 
or pile-driving. As noted earlier, the average number of seals observed 
at the Trinidad Bay haul-out during the time when in-water noise would 
be produced is 36.5 seals, which with a correction factor of 1.54 
indicates a Trinidad seal population at that time of 56.2 or 
approximately 57 individuals, with these seals spending approximately 
35% (1-[36.5/56.2]) of their time in the water.
    As noted above, Goley et al. (2007) state that harbor seals ``are 
typically less abundant during the winter months as seals tend to spend 
more time foraging at sea during this time,'' therefore, only a 
fraction of the seals would actually be present in Trinidad Bay at the 
time of noise produced by the Trinidad Pier Renovation Project. No 
direct measurements are available that would allow estimation of that 
fraction, although it is known that harbor seal abundance in Trinidad 
Bay declines from a summer peak of 67 harbor seals in July to a winter 
minimum of 25 in November (Goley et al., 2007). As

[[Page 47163]]

further noted above, harbor seals exhibit high site fidelity, utilizing 
one to two haul-out sites within their range (Sullivan, 1980; Pitcher 
et al., 1981; Stewart et al., 1994), rarely traveling more than 25 to 
50 km from these haul-outs (Brown and Mate, 1983; Suryan and Harvey, 
1998). If it is assumed that winter foraging Trinidad Bay harbor seals 
travel up to 25 km from their haul-out, then their foraging area covers 
approximately 982 km\2\ (379.2 mi\2\) (a half-circle with a 25 km 
radius), whereas the area of Trinidad Bay is approximately 5 km\2\ (1.9 
mi\2\). This would suggest that fewer than 1% of the seals in the water 
at any given time would be found in Trinidad Bay. This is likely an 
underestimate, as seals bound to and from the haul-out would 
necessarily have to spend some time in passage through the waters of 
Trinidad Bay. However, it does suggest that no more than a very few 
seals are likely to be in the waters of Trinidad Bay at any time when 
underwater noise is being produced from renovation activities. It is 
conservatively estimated that one seal may be exposed during the course 
of any individual pile-removal, augering, or pile-driving event. During 
the total of 164 days when underwater noise would be produced from any 
one of these three activities, there would be 435 noise-producing 
events, or an average of 435/164 = 2.65 events per day, resulting in 
potential exposure of 435 harbor seals over the duration of the planned 
activities.
    (4) The estimation of incidental takes that would occur as a result 
of in-air sound has been analyzed in detail in the IHA application and 
correspondence with the Trinidad Rancheria. Based on in-air noise 
measurements taken during vibratory pile-driving as reported by 
Laughlin (2010), in-air noise production during pile driving at the 
Trinidad Pier will likely be between 87.5 and 96.5 dB re 20 [micro]Pa 
(unweighted). For purposes of the analysis presented below, it is 
assumed that in-air noise from vibratory pile-driving would produce 96 
dB (rms) (unweighted). This noise would be produced during both pile-
removal and pile-placement activities. The augering equipment produces 
slightly less noise at a level of 92 dB (rms) (unweighted). Assuming an 
attenuation rate of 6 dB per doubling of distance, this indicates that 
sound from in-air pile-removal or pile-placement would attenuate to the 
Level B threshold for harbor seals (90 dB) at a distance of 30.5 m (100 
ft). Sound from augering would attenuate to the Level B harassment 
threshold at a distance of approximately 18.3 m (60 ft). There are no 
haul-outs located this close to the pier, but there are anecdotal 
reports of harbor seals surfacing near boats alongside the pier, and it 
is thus possible that occasional exposure could occur. Such an event is 
unlikely because anecdotal reports of harbor seals at the pier are 
associated with seals seeking food from recreational and commercial 
fishing boats, which would no longer use the pier during reconstruction 
activities; thus the pier would no longer function as a foraging 
resource (during construction, fishing boats could unload at the boat 
ramp, which is located several hundred feet from the pier and is 
blocked from the construction area by an intervening headland). It is 
conservatively estimated that seal exposure to in-air sound in excess 
of the Level B harassment threshold could occur during up to 20% of the 
in-air noise producing events, or a total of 87 events during the 
period of construction. Based on this information, NMFS has determined 
that 174 harbor seals may be taken by Level B harassment from exposure 
to in-air sounds produced during the renovation operations. This number 
would be verified by the monitoring data.
    (5) The Trinidad Rancheria states (via the construction contractor) 
that 58 construction days would be adequate to remove 205 wood piles, a 
removal rate of approximately 3.5 piles per day, as stated in 
correspondence and the Trinidad Rancheria's IHA application. There is 
no reason to believe that this is not feasible.
    Comment 2: The Commission recommends that the NMFS defer issuance 
of the IHA until it has reviewed estimates of numbers of takes for 
California sea lions and gray whales during the proposed activities.
    Response: NMFS and Trinidad Rancheria revised and addressed the 
Commission's concerns regarding estimates of numbers of takes for 
harbor seals, California sea lions, and gray whales incidental to the 
specified activities during review by the Commission prior to the 
notice of proposed IHA being published in the Federal Register. NMFS 
and Trinidad Rancheria believe that the take estimation analysis in the 
IHA is accurate and likely overestimates the potential for take in some 
cases as necessary to account for uncertainty. Accordingly, further 
review of the take estimation is unnecessary.
    Comment 3: The Commission recommends that the NMFS defer issuance 
of the IHA until it has re-estimated the distances to various in-water 
and in-air Level A and B harassment thresholds for all three types of 
proposed sound-producing activities and then re-evaluated the proposed 
mitigation and monitoring measures to ensure that the appropriate areas 
are adequately monitored.
    Response: NMFS and Trinidad Rancheria revised and addressed the 
Commission's concerns regarding estimates of distances to various in-
water and in-air Level A and Level B harassment thresholds for all 
three types of sound-producing activities planned as part of the 
Trinidad Pier Reconstruction Project during draft review by the 
Commission prior to the notice of proposed IHA being published in the 
Federal Register. NMFS and Trinidad Rancheria revised the analysis for 
the potential of incidental take in accordance with the Commission's 
recommendations for a harbor seal correction factor, which is discussed 
in Comment 2. The changes are numerically minor, and NMFS and Trinidad 
Rancheria do not find evidence that significant changes are necessary 
to the planned monitoring and reporting plan.
    Comment 4: The Commission recommends that the NMFS defer issuance 
of the IHA until it has required the applicant to verify the associated 
Level A and B harassment zones through calibrated in-situ sound 
measurements and to adjust those zones as appropriate.
    Response: Trinidad Rancheria's current monitoring study 
incorporates this recommendation with regard to underwater sound. The 
expected threshold for Level A harassment and associated exclusion 
zones (EZs) for pinnipeds (i.e., 190 dB) are 0.9 m (3 ft), 0 m (0 ft), 
and 0 m (0 ft) for pile-driving, augering, and pile-removal, 
respectively. The expected threshold for Level A harassment and 
associated EZs for cetaceans (i.e., 180 dB) are 4.9 m (16 ft), 0.3 m (1 
ft), and 21.6 m (71 ft) for pile-driving, augering, and pile-removal, 
respectively. NMFS has not determined Level A harassment thresholds for 
marine mammals for in-air noise; however, Southall et al. (2007) 
recommends 149 dB re 20 [micro]Pa (peak) (flat) as the potential 
threshold for injury from in-air noise for all pinnipeds. Operation of 
a vibratory pile-driver would produce in-air sound intensity of 96 dBA 
at 50 ft. This is the in-air sound level for both pile-removal and 
pile-installation. Operation of the auger would produce in-air sound of 
92 dBA at 15.2 m (50 ft). Using the attenuation rate of 6 dB for each 
doubling of distance, the loudest noise from reconstruction operations 
(i.e., pile-driving) would be 136 dBA at a distance of 0.3 m (10 
inches), so it is not physically possible for a pinniped to be

[[Page 47164]]

exposed to a level of sound that could be potentially injurious, 
especially since a shut-down would occur if any pinniped approaches or 
enters the in-water EZ for Level A harassment. Also, the applicant has 
agreed to perform in-air monitoring to verify the Level B harassment 
zone for in-air sound and is required by NMFS in the IHA.
    Comment 5: The Commission recommends that the NMFS defer issuance 
of the IHA until it has required that shut-down procedures be 
established for both species of pinnipeds.
    Response: Trinidad Rancheria will implement shut-down procedures 
for underwater noise to avoid the potential for Level A harassment 
(injury) for all species of marine mammals during the Trinidad Pier 
Reconstruction Project. NMFS has included a requirement to this effect 
in the IHA. Because in-air sound levels would not reach the injury 
threshold noted by Southall et al. (2007), there would be no need to 
have a requirement for shut-down when pinnipeds are hauled-out.
    Comment 6: The Commission recommends that the NMFS defer issuance 
of the IHA until it has provided further analysis and justification 
regarding the efficacy of visual monitoring for the proposed activities 
and the manner in which the number of takes can be determined 
accurately.
    Response: NMFS believes that the planned visual monitoring program 
will be sufficient to detect, with reasonable certainty, the majority 
of marine mammals within or entering identified EZs. This monitoring, 
along with the required mitigation measures, will result in the least 
practicable impact on the affected species or stocks and will result in 
a negligible impact on the affected species or stocks of marine 
mammals. Also, NMFS expects some animals to avoid areas around the 
reconstruction operations ensonified at the level of the EZ.
    The effectiveness of the monitoring and mitigation measures is 
science-based and is based on the requirement that monitoring and 
mitigation measures be ``practicable.'' NMFS believes that the 
framework for visual monitoring will be effective at spotting the 
species for which take is requested within the immediate action area 
where Level A harassment has the most potential to occur.
    Comment 7: The Commission recommends that the NMFS defer issuance 
of the IHA until it has required the applicant to use 30 min as the 
appropriate clearance time for gray whales before ramp-up activities 
may commence and to use hydrophones for acoustic detection of gray 
whales.
    Response: While passive acoustic monitoring is continuously 
evolving, the technology for underwater detection of marine mammals 
using hydrophones is largely experimental and is prohibitively 
expensive in the context of the capital investment and funding 
mechanisms available for this project. The Trinidad Rancheria is 
however able to commit to a 30 minute clearance time for gray whales, 
and NMFS has made this a requirement in the IHA.
    Comment 8: The Commission recommends that the NMFS defer issuance 
of the IHA until it has addressed the deficiencies identified by the 
Commission and publish a new proposed IHA in the Federal Register with 
the corrected information and provide for an additional 30 day comment 
period.
    Response: NMFS and the Trinidad Rancheria have addressed all issues 
identified and recommended by the Commission. NMFS believes that 
publishing a new proposed IHA in the Federal Register with the 
corrected information and providing an additional 30 day public comment 
period is unnecessary, as it would delay scheduled pile-driving and 
renovation operations associated with the Trinidad Pier Reconstruction 
Project. It is essential for the Trinidad Rancheria that construction 
on the pier begins this August, as failure to meet this deadline would 
result in loss of the Federal grants supporting this essential tribe 
infrastructure project and would further endanger public safety and 
welfare by requiring continuing use of the existing aged pier structure 
for an indefinite period of time.

Description of Marine Mammals and Habitat Affected in the Activity Area

    One cetacean species and two species of pinnipeds are known to or 
could occur in the Trinidad Bay action area and off the Pacific 
coastline (see Table 1 below). Eastern Pacific gray whales, California 
sea lions, and Pacific harbor seals are likely to be found within the 
activity area. Steller sea lions and transient killer whales could 
potentially be found in small numbers within the activity area, but 
authorization for ``take'' by incidental harassment is not requested 
for Steller sea lions and transient killer whales due to their rarity 
and the feasibility of avoiding impacts to these species by pausing 
work in the event that they are detected, as detailed in the Marine 
Mammal Monitoring Plan. NMFS, based on the best available science, 
agrees that transient killer whales and Steller sea lions are not 
likely to be present in the action area during implementation of the 
specified activities and are thus unlikely to be exposed to the effects 
of the specified activities. NMFS does not expect incidental take of 
these marine mammal species and therefore has not authorized take of 
these two species in the IHA. The potential presence of Steller sea 
lions is detailed in Section 5.6 of the Trinidad Rancheria's BA. The 
potential presence of gray whales, killer whales, harbor seals, and 
California sea lions is detailed in Appendix C of the IHA application 
(see ADDRESSES).
    A variety of other marine mammals have on occasion been reported 
from the coastal waters of northern California. These include 
bottlenose dolphins, harbor porpoises, northern elephant seals, 
northern fur seals, and sea otters. However, none of these species have 
been reported to occur in the action area, and in particular none were 
mentioned by the regional NMFS specialist in the identification of 
species to be addressed in the IHA application. The sea otter is 
managed under the jurisdiction of the U.S. Fish and Wildlife Service 
(USFWS) and is not considered further in this analysis. The USFWS has 
informed the ACOE that a section 7 consultation under the ESA is not 
necessary for any of their jurisdictional species, including sea 
otters. Table 1 presents information on the cetacean and pinnipeds 
species, their habitat, and conservation status in the general region 
of the project area. The notice of proposed IHA (76 FR 28733, May 18, 
2011) contained a complete description on the status, abundance, 
distribution, and seasonal distribution of Pacific harbor seals, 
California sea lions, Eastern Pacific gray whales, Steller sea lions, 
and killer whales. That information has not changed and is therefore 
not repeated here.

[[Page 47165]]



 Table 1--The Habitat and Conservation Status of Marine Mammals Inhabiting the General Region of the Action Area
                                  in the Pacific Ocean Off the U.S. West Coast
----------------------------------------------------------------------------------------------------------------
              Species                      Habitat                   ESA \1\                    MMPA \2\
----------------------------------------------------------------------------------------------------------------
Mysticetes:
    Gray whale (Eschrichtius        Coastal and shelf....  DL--Eastern Pacific stock   NC--Eastern Pacific stock
     robustus).                                             (or population).            (or population).
                                    .....................  EN--Western Pacific stock   D--Western Pacific stock
                                                            (or population).            (or population).
Odontocetes:
    Killer whale (Orcinus orca)...  Widely distributed...  NL........................  D--Southern Resident and
                                                                                        AT1 Transient
                                                                                        populations.
    Bottlenose dolphin (Tursiops    Offshore, inshore,     NL........................  NC
     truncatus).                     coastal, estuaries.
    Harbor porpoise (Phocoena       Coastal and inland     NL........................  NC
     phocoena).                      waters.
Pinnipeds:
    Pacific harbor seal (Phoca      Coastal..............  NL........................  NC
     vitulina richardsi).
    Northern elephant seal          Coastal, pelagic when  NL........................  NC
     (Mirounga angustirostris).      migrating.
    California sea lion (Zalophus   Coastal, shelf.......  NL........................  NC
     californianus).
    Steller sea lion (Eumetopias    Coastal, shelf.......  T.........................  D
     jubatus).
    Northen fur seal (Callorhinus   Pelagic, offshore....  NL........................  D--Pribilof Island/
     ursinus).                                                                          Eastern Pacific
                                                                                        population.
----------------------------------------------------------------------------------------------------------------
\1\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, NL = Not listed, DL = Delisted.
\2\ U.S. Marine Mammal Protection Act: D = Depleted, NC = Not classified.

    Further information on the biology and local distribution of these 
marine mammal species and others in the region can be found in the 
Trinidad Rancheria's application and BA, which is available upon 
request (see ADDRESSES), and the NMFS Marine Mammal Stock Assessment 
Reports, which are available online at: http://www.nmfs.noaa.gov/pr/species/.

Potential Effects of Activities on Marine Mammals

    The Trinidad Rancheria requests authorization for Level B 
harassment of three species of marine mammals (i.e., Pacific harbor 
seals, Eastern Pacific gray whales, and California sea lions) 
incidental to the use of heavy equipment and its propagation of 
underwater and in-air noise from various acoustic mechanisms associated 
with the Trinidad Pier Reconstruction Project and the specified 
activities discussed above. Marine mammals potentially occurring in 
Trinidad Harbor include Pacific harbor seals, Eastern Pacific gray 
whales, California sea lions, Steller sea lions, and killer whales 
(transient). Killer whale and Steller sea lion observations in the 
specific geographic area, as noted, are very rare (less than one per 
year) and thus not likely to be affected by the proposed action. But 
the gray whale and California sea lion are observed occasionally, and 
harbor seals are seldom absent from the harbor, and thus considered 
likely to be exposed to sound associated with the Trinidad Pier 
Reconstruction Project.
    Current NMFS practice, regarding exposure of marine mammals to 
high-level underwater sounds is that cetaceans and pinnipeds exposed to 
impulsive sounds of at or above 180 and 190 dB (rms) or above, 
respectively, have the potential to be injured (i.e., Level A 
harassment). NMFS considers the potential for behavioral (Level B) 
harassment to occur when marine mammals are exposed to sounds below 
injury thresholds but at or above the 160 dB (rms) threshold for 
impulse sounds (e.g., impact pile-driving) and the 120 dB (rms) 
threshold for continuous noise (e.g., vibratory pile-driving). No 
impact pile-driving is planned for the activity in Trinidad Bay. 
Current NMFS practice, regarding exposure of marine mammals to high-
level in-air sounds, as a threshold for potential Level B harassment, 
is at or above 90 dB re 20 [mu]Pa for harbor seals and at or above 100 
dB re 20 [mu]Pa for all other pinniped species (Lawson et al., 2002; 
Southall et al., 2007). NMFS has not established a threshold for Level 
A harassment for marine mammals exposed to in-air noise; however, 
Southall et al. (2007) recommends 149 dB re 20 [mu]Pa (peak) (flat) as 
the potential threshold for injury from in-air noise for all pinnipeds.
    The acoustic mechanisms involved entail in-air and underwater non-
impulsive noise caused by the activities of vibratory pile removal, 
auger operation, and vibratory pile placement. Anticipated peak 
underwater noise levels may exceed the 120 dB (rms) threshold for Level 
B harassment for continuous noise sources, but are not anticipated to 
exceed the 180 and 190 dB (rms) Level A harassment thresholds for 
cetaceans and pinnipeds, respectively. Expected in-air noise levels are 
anticipated to result in elevated sound intensities within 152.4 m (500 
ft) of the construction activities involving vibratory pile-driving and 
augering and do not exceed the injury threshold put forth by Southall 
et al. 2007 for in-air sound exposure. No other mechanisms are expected 
to affect marine mammal use of the area. The debris containment boom, 
for instance, would not affect any haul-out and would not entail noise, 
and activity in the water is not materially different from normal 
vessel operations at the pier, to which the animals are already 
habituated.
    The notice of the proposed IHA (76 FR 28733, May 18, 2011) also 
included a discussion of the potential effects of underwater and in-air 
noise on marine mammals. NMFS refers the reader to Trinidad Rancheria's 
application, and the BA for additional information on the behavioral 
reactions (or lack thereof) by all types of marine mammals to the pier 
renovation operations.

Underwater Noise

    Background--When a pile is vibrated, the vibration propagates 
through the pile and radiates sound into the water

[[Page 47166]]

and the substrate as well as the air. Sound pressure pulse as a 
function of time is referred to as the waveform. The peak pressure is 
the highest absolute value of the measured waveform, and can be 
negative or positive pressure peak (see Table 1 of the IHA application 
for definitions of terms used in this analysis). The rms level is 
determined by analyzing the waveform and computing the average of the 
squared pressures over the time that comprise that portion of the 
waveform containing 90 percent of the sound energy (Richardson et al., 
1995; Illingworth and Rodkin, 2008). This rms term is described as rms 
90 percent in this document. In this analysis, underwater peak 
pressures and rms sound pressure levels are expressed in decibels (dB) 
re 1 [mu]Pa. The total sound energy in an impulse accumulates over the 
duration of that impulse.
    Baseline Underwater Noise Level--Currently, no data are available 
describing baseline levels of underwater sound in Trinidad Bay. Sound 
dissipates more rapidly in shallow waters and over soft bottoms (i.e., 
sand). Much of Trinidad Bay is characterized by its shallow depth (30 
to 50 ft), flat bottom, and floor substrate of rock, cobble, gravel, 
sand, and irregularly submerged rock in some areas, thereby making it a 
poor acoustic environment. Currents, tides, waves, winds, commercial 
and recreational vessels, and in-air noise may further increase 
background sound levels near the action area. Relevant index 
information can be derived from underwater sound baselines in other 
areas. The quietest waters in the oceans of the world are at Sea State 
Zero, 90 dB (rms) at 100 Hz (National Research Council, 2003; Guedel, 
1992). Underwater sound levels in Elliott Bay near Seattle, Washington, 
representative of an area receiving moderately heavy vessel traffic, 
are about 130 dB (rms) (WSDOT, 2006). In Lake Pend Oreille, Idaho, an 
area which, like Trinidad Bay, receives moderate to heavy traffic from 
smaller vessels, underwater sound levels of 140 dB (rms) are reached on 
summer weekends, dropping to 120 dB (rms) during quiet mid-week periods 
(Cummings, 1987). Since Trinidad Bay receives daily, year-round use by 
a variety of recreational and fishing vessels, a background underwater 
sound estimate of 120 dB (rms) is a conservative estimate for daytime 
underwater noise levels, and was used to calculate the action area for 
the activity. The rationale for using the background estimate of 120 dB 
(rms) is based upon comparison with inland or protected marine waters 
(Puget Sound in Washington, and Lake Coeur d'Alene in Idaho) that are 
not subject to the severity of wave and storm activity that can occur 
in the Trinidad Bay area. It is likely that intermittent directional 
sound sources of higher intensity constitute a part of the normal 
acoustic background, to which seals in the area are habituated. 
Assuming that such intermittent background sound sources may be twice 
as loud as the regionally averaged rms background sound level of 120 
dB, then seals are unlikely to show a behavioral response to any sounds 
quieter than 126 dB (rms). A sound that is as loud as or below ambient/
background levels is likely not discernable to marine mammals and 
therefore is not likely to have the potential to harass a marine 
mammal.
    Noise Thresholds--There has been extensive effort directed towards 
the establishment of underwater sound thresholds for marine life. 
Various criteria for marine mammals have been established through 
precedent. Current NMFS practice regarding exposure of marine mammals 
to high-level sounds is that cetaceans and pinnipeds exposed to 
impulsive sounds of 180 and 190 dB (rms) or above, respectively, have 
the potential to be injured (i.e., Level A harassment). NMFS considers 
the potential for Level B harassment (behavioral) to occur when marine 
mammals are exposed to sounds below injury thresholds, but at or above 
160 dB (rms) for impulse sounds at/or above 120 dB (rms) for continuous 
noise (e.g., vibratory pile-driving). As noted above, current NMFS 
practice, regarding exposure of marine mammals to high-level in-air 
sounds, as a potential threshold for Level B harassment, is at or above 
90 dB re 20 [micro]Pa for harbor seals and at or above 100 dB re 20 
[micro]Pa for all other pinniped species. Since, as noted above, 
background sound levels in Trinidad Bay are anticipated to frequently 
exceed the 120 dB (rms) threshold, this analysis evaluates potential 
effects relative to a background level of 126 dB (rms).

Anticipated Extent of Underwater Project Noise

    Pile-Driving--There are several sources of measurement data for 
piles that have been driven with a vibratory hammer. Illingworth and 
Rodkin (2008) collected data at several different projects with pile 
sizes ranging from 33 to 183 cm (13 to 72 in). The most representative 
data from these measurements would be from the Ten Mile River Bridge 
Replacement Project and the Port of Anchorage Marine Terminal 
Redevelopment Project. At Ten Mile, 96 cm (30 in) CISS piles were 
measured in cofferdams filled with water in the Ten Mile River at 33 ft 
(m) and 330 ft (m) from the piles. The sound level in the water channel 
ranged from less than 150 to 166 dB (rms). Levels generally increase 
gradually with increasing pile size. These sound levels are therefore 
considered a conservative (credible worst case) estimate of the 
expected levels given that the size of the piles proposed for this 
project are smaller in diameter (45.7 cm or 18 in) than the piles 
measured at Ten Mile.
    Illingworth and Rodkin (2008) gathered data at the Port of 
Anchorage (POA) during the vibratory driving of steel H piles. These 
data, and data gathered by others, were used as the basis for the 
Environmental Assessment that was prepared by NMFS for the issuance of 
an IHA at the POA. These data were summarized in the POA IHA. The POA 
IHA concluded that average sound levels of vibratory pile-driving 
sounds would be approximately 162 dB re 1 [micro]Pa at a distance of 20 
m (65.6 ft). Furthermore, for vibratory pile-driving, the 120 dB level 
would be exceeded out to about 800.1 m (2,625 ft) from the vibratory 
hammer.
    A selection of additional projects using vibratory hammers was made 
from the ``Compendium of Pile-Driving Sound Data'' (Illingworth and 
Rodkin, 2007). This includes all projects in the compendium that used a 
vibratory hammer to drive steel pipe piles or H-piles. Data from these 
projects, and the two projects named above are summarized in Table 2 of 
the IHA application and this document.

                                            Table 2--Sound Level Data
----------------------------------------------------------------------------------------------------------------
                                   Distance  (m and                                             dB re 1 [mu]Pa
             Project                      ft)              Pile type          Water depth            (rms)
----------------------------------------------------------------------------------------------------------------
10 Mile.........................  10 m (33 ft)......  76.2 cm (30 in)     Not stated........  166.
                                                       steel pipe.
10 Mile.........................  100.6 m (330 ft)..  76.2 cm (30 in)     Not stated........  Less than 150.
                                                       steel pipe.
Port of Anchorage...............  20.1 m (66 ft)....  H-pile............  Not stated........  162.

[[Page 47167]]

 
San Rafael Canal................  10 m (33 ft)......  25.4 cm (10 in) H-  2.1 m (7 ft)......  147.
                                                       pile.
San Rafael Canal................  20.1 m (66 ft)....  25.4 cm (10 in) H-  2.1 m (7 ft)......  137.
                                                       pile.
Mad River Slough................  10 m (33 ft)......  33 cm (13 in)       4.9 m (16 ft).....  154 to 156.
                                                       steel pipe.
Richmond Inner Harbor...........  10 m (33 ft)......  1.8 m (6 ft) steel  Not stated........  167 to 180.
                                                       pipe.
Richmond Inner Harbor...........  29.9 m (98 ft)....  1.8 m (6 ft) steel  Not stated........  160.
                                                       pipe.
Stockton Wastewater Crossing....  10 m (33 ft)......  0.9 m (3 ft) steel  Not stated........  168 to 175.
                                                       pipe.
Stockton Wastewater Crossing....  20.1 (66 ft)......  0.9 m (3 ft) steel  Not stated........  166.
                                                       pipe.
San Rafael Sea Wall.............  10 m (33 ft)......  25.4 cm (10 in) H-  2.1 m (7 ft)......  147.
                                                       pile.
San Rafael Sea Wall.............  20.1 m (66 ft)....  25.4 cm (10 in) H-  2.1 m (7 ft)......  137.
                                                       pile.
----------------------------------------------------------------------------------------------------------------
Source: Illingworth and Rodkin (2007, 2008).

    Based on these data, the results for 76.2 cm to 0.9 m (30 in to 3 
ft) steel pipe driven in water would appear to constitute a 
conservative representation of the potential effects of driving 45.7 cm 
(18 in) steel pipe at the Trinidad Pier. Those indicate an rms level of 
166 to 175 dB at 10 m (33 ft) from the pile. Calculations in this 
analysis assume the high end of this range. For this analysis, close to 
the pile, it is assumed that there would be a 4.5 dB (rms) decrease for 
every doubling of the distance (practical spreading loss model). 
Isopleth distances based on this inference are presented in Table 3 of 
Trinidad Rancheria's IHA application and this document. Figure 1 of the 
IHA application shows both the area of effect and the relative exposure 
risk based on the presence of shielding features (headlands and sea 
stacks). Under no circumstances would the Level A harassment (injury) 
threshold for cetaceans or pinnipeds be exceeded, but the specified 
activities would likely exceed the Level B harassment threshold, which 
also corresponds to background sound level in the area, throughout 
Trinidad Harbor. Shielding by headlands flanking the harbor would, 
however, prevent acoustic impacts to waters outside the harbor that are 
not on a line-of-sight to the sound source. This effect is shown in 
Figure 1 of the IHA application.
    Noise Levels from Augering--An auger is a device used for moving 
material or liquid by means of a rotating helical shaft into the earth. 
An attempt was made to measure the noise from augering out the 76.2 cm 
(30 in) piles at the Ten Mile Bridge Replacement Project. The levels 
were below the peak director of the equipment, 160 dB peak, and so 
measurements were stopped. Augering is expected to generate noise 
levels at or below the lower end of this range (Illingworth and Rodkin, 
2008). Using the uniform ``practical spreading model'' transmission 
loss rate of 4.5 dB (rms) per doubling of distance, background sound 
levels would exceed the Level B harassment threshold at distances of 
less than 2.4 km (1.5 mi) (see Table 4 and Table 3 of the IHA 
application).

              Table 3--Predicted Distances to Underwater and In-Air Acoustic Threshold Levels for the Trinidad Pier Reconstruction Project
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Distance from activity to isopleths
                              --------------------------------------------------------------------------------------------------------------------------
                                                                                                                                               100 dB in-
    Construction activity                                                                                                  90 dB in-air for     air for
                                   190 dB  (rms)          180 dB  (rms)          160 dB  (rms)         126 dB  (rms)         harbor seals      all other
                                                                                                                                               pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
45.7 cm (18 in) Pile           0.9 m (3 ft).........  4.9 m (16 ft)........  101.5 m (333 ft)....  23.3 km (14.5 mi)...  26.5 m (87 ft)......  10.5 m
 Vibratory Installation.                                                                                                                       (34.5
                                                                                                                                                ft).
Augering.....................  0 m (0 ft)...........  0.3 m (1 ft).........  10.1 m (33 ft)......  2.4 km (1.5 mi).....  18.3 m (60 ft)......  7.3 m (24
                                                                                                                                                ft).
Wood Pile Removal............  0 m (0 ft)...........  0.9 m (3 ft).........  21.6 m (71 ft)......  5 km (3.1 mi).......  26.5 m (87 ft)......  10.5 m
                                                                                                                                               (34.5
                                                                                                                                                ft).
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Noise Levels from Removal of Wood Piles--Removal of the existing 
wood piles would be accomplished with the use of a vibratory hammer. 
Typically the noise levels for installing and removing a pile are 
approximately the same when a vibratory hammer is used. The noise 
generated by installing wood piles is generally lower than steel shell 
piles. Illingworth and Rodkin (2007, 2008) have had only one 
opportunity to measure the installation of woodpiles, and this was with 
a 1,360.8 kg (3,000 lb) impact hammer. The levels measured at a 
distance of 10 m (32.8 ft) were as follows: 172 to 182 dB peak, 163 to 
168 dB (rms). For a comparable CISS pile, using a 1,360.8 kg (3,000 lb) 
drop hammer, the levels measured were 188 to 192 dB peak, 172 to 177 dB 
(rms). The noise generated during the installation of the wood pile was 
approximately 10 dB lower than the CISS piles. Following this logic, 
the sound produced when removing the wood piles would be about 10 dB 
lower than when installing the CISS piles.
    Levels of 180 dB (rms) and 190 dB (rms) are expected to occur in 
the water at very small distances as a result of pile removal (see 
Table 3 in this document). Peak sound pressures would not be expected 
to exceed 190 dB in water. The average sound level of vibratory 
woodpile removal would be approximately 152 dB (rms) at a distance of 
20.1 m (66 ft). Using the uniform practical spreading loss model 
transmission loss rate of 4.5 dB (rms) per doubling of distance, the 
Level B harassment threshold distance would be

[[Page 47168]]

5 km (3.1 miles) (see Table 3 in the IHA application).
    Potential for Biological Effects--Based on the foregoing analysis, 
the action could result in underwater acoustic effects to marine 
mammals. The injury thresholds for pinnipeds and cetaceans would not be 
attained, but the acoustic background level in the area, 126 dB (rms) 
would be attained during use of the vibratory pile driver (for wood 
piling removal and for CISS pile placement), and during augering of the 
CISS pile placements. Effects distances for these activities are shown 
in Table 3 of the IHA application, and range up to 23.3 km (14.5 mi). 
The duration of exposure varies between activities.

                                      Table 4--Noise Generating Activities
----------------------------------------------------------------------------------------------------------------
                                                                           Number of
                                    Number of     Time per   Duration of   days when     126 dB (rms)  isopleth
      Construction activity           piles         pile       activity     activity            distance
                                                                             occurs
----------------------------------------------------------------------------------------------------------------
45.7 cm (18 in) pile vibratory             115         0:15        28:45           58  23.3 km (14.5 mi).
 installation.
Augering.........................          115         1:00       115:00           58  2.4 km (1.5 mi).
Wood pile removal................          205         0:40       136:40           58  5 km (3.1 mi).
----------------------------------------------------------------------------------------------------------------

    Pile installation would occur for approximately 30 min (up to two 
piles would be driven each day at up to 15 min drive time per pile) on 
each of 58 days (see Table 4 in the IHA application and this document), 
resulting in sound levels exceeding the behavioral effect threshold 
within 23.3 km (14.5 mi) of the activity.
    Pile removal is a quieter activity performed for a longer time: 
Approximately 136:40 hours distributed evenly over 58 days, or about 
2.5 hours on each day when the activity occurs. Sound levels would 
exceed the behavioral effect threshold within 5 km (3.1 mi) of the 
activity.
    Augering, the least-noisy activity, is estimated to require 1 hour 
for each of 115 piles with activity occurring on each of 58 days evenly 
distributed during a 180-day period, or about 2 hours on each day when 
the activity occurs. Sound levels would exceed the behavioral effect 
threshold within 2.4 km (1.5 mi) of the activity.
    These activities could be performed on the same day, but are 
expected to normally occur on consecutive days, with a cycle of pile 
removal-pile installation-augering-grouting occurring as each of 25 
successive bents is placed.
    As shown in Figures 1 and 2 of the IHA application, Trinidad Bay is 
protected from waves coming from the north and west, but open to 
coastline on the south. The coast extending to the south, and the rocky 
headland to the west of the pier, would shield waters from the acoustic 
effects described above except within the bay itself. These topographic 
considerations result in a situation such that underwater noise-
generating activities would produce elevated underwater sound within 
most of the bay itself, but would have a minor effect on underwater 
sound levels outside the bay.
    Seals outside of Trinidad Harbor and more than 1.6 to 3.2 km (1 to 
2 mi) offshore are likely already exposed to and habituated to loud 
machinery noise in the form of deep-draft vessel traffic along the 
coast; such vessels may produce noise levels on the order of 170 to 180 
dB (rms) at 10 m and thus have areas of effect comparable to the 23.3 
km (14.5 mi) radius of effect calculated for vibratory pile-driving 
noise. In this context, the 23.3 km (14.5 mi) radius of effect is 
likely unrealistic, just as it is likely unrealistic to think that 
these seals alter their behavior in response to the passage of a large 
vessel 23.3 km (14.5 mi) away. Behavioral considerations suggest that 
the seals would be able to determine that a noise source does not 
constitute a threat if it is more than a couple of miles away, and the 
sound levels involved are not high enough to result in injury (Level A 
harassment). Nonetheless, these data suggest that pile-driving may 
affect seal behavior throughout Trinidad harbor, i.e., within 
approximately 1.6 km (1 mi) of the activity. The nature of that effect 
is unpredictable, but logical responses on the part of the seals 
include tolerance (noise levels would not be loud enough to induce 
temporary threshold shift in harbor seals), or avoidance by using haul-
outs or by foraging outside the harbor.
    With regard to noises other than pile-driving (i.e., pile removal, 
augering, and construction noise), estimation of biological effects 
depends on the characteristics of the noise and the behavior of the 
seals. The noise is qualitatively similar to that produced by the 
engines of fishing vessels or the operations of winches, noises to 
which the seals are habituated and which they in fact regard as an 
acoustic indicator signaling good foraging opportunities near the pier. 
There are no data about the magnitude of this acoustic indicator, but 
the noise produced by the fishing vessel engines entering or leaving 
the harbor is likely not less than 150 dB (rms) at 10 m, though it will 
be quieter as vessels ``throttle back'' near the pier. This level (150 
dB [rms]) is the same as the estimated noise level from augering, and 
15 dB less than the estimated noise level from pile removal. In this 
context, behavioral responses due to augering are not likely, except 
that initially seals might approach the work area in anticipation of 
foraging opportunities. Such behavior would likely cease once the seals 
learned the difference between the sound auger and that of a fishing 
vessel. Behavioral responses in the form of avoidance due to pile 
removal might occur within a distance of about 50 m (164 ft) from the 
activity, but the area so affected constitutes a small fraction of 
Trinidad Harbor and has no haul-outs; thus very few seals would be 
expected to be affected.
    In-Air Noise--The principal source of in-air noise would be the 
vibratory pile driver used to extract old wood piles and to place the 
new CISS piles. Laughlin (2010) has recently reported unweighted sound 
measurements from vibratory pile drivers used to place steel piles at 
two projects involving dock renovation for the Washington State 
Ferries. In both projects, noise levels were measured in terms of the 5 
min average continuous sound level (Leq). Frequency-domain spectra for 
the maximum sound level (Lmax) were also measured. The Leq measurements 
in this case were equivalent to the unweighted rms sound level, 
measured over a 5 min period.
    At the Wahkiakum County Ferry Terminal, one measurement station was 
used to take measurements of the vibratory placement (APE hammer) of 
one 45.7 cm (18 in) steel in-water pile, the same size that would be 
placed during the Trinidad Pier renovation. At the Keystone Ferry Dock 
renovation, four measurement stations were used to take measurements of 
the vibratory

[[Page 47169]]

placement (APE hammer) of one 76.2 cm (30 in) steel in-water pile. At 
both sites, piles were placed in alluvial sediments, whereas the 
Trinidad Pier piles would be placed in pre-bored holes in sandstone. 
Results from the Wahkiakum and Keystone piles (Laughlin, 2010) are 
shown in Table 5 of the IHA application.
    Based on these data (Laughlin, 2010), in-air noise production 
during pile-driving at the Trinidad Pier will likely be between 87.5 
and 96.5 dB re 20 [mu]Pa unweighted at 50 ft. For the purpose of the 
analysis presented below, it is assumed that in-air noise from 
vibratory pile-driving would produce 96 dB (rms) unweighted. This noise 
would be produced during both pile removal and pile placement 
activities. The augering equipment produces slightly less noise, 92 dB 
(rms) unweighted (WSDOT, 2006). All other power equipment that would be 
used as part of the action (e.g., trucks, pumps, compressors) produces 
at least 10 dB less noise and thus has much less potential to affect 
wildlife in the area.
    In contrast, background noise levels near the Trinidad Pier are 
already elevated due to normal pier activities. Marine mammals at 
Trinidad Bay haul-outs are presumably habituated to the daily coming 
and going of fishing and recreational vessels, and to existing 
activities at the pier such as operation of the hoists and the loading 
and unloading of commercial crab boats. These activities may occur at 
any time of the day and may produce noise levels up to approximately 82 
to 86 dB (unweighted) at 15.2 m (50 ft) for periods of up to several 
hours at a time. Accordingly 82 dB (unweighted) is chosen as the 
background level for noise near the pier.
    Effects on Pacific Harbor Seals--In-air sound attenuates at the 
rate of approximately 5 dB/km for a frequency of 1 kHz, air temperature 
of 10[deg] C (50[deg] F), and relative humidity of 80 percent (Kaye and 
Laby, 2010). These conditions approximate winter weather in Trinidad. 
Under these conditions, the noise of the vibratory pile-driver would 
attenuate to approximately 82 dB at approximately 2.8 km (1.7 mi) from 
the pier. Attenuation, which is proportional to frequency, would be 
reduced at lower frequencies, and would be much greater at higher 
frequencies. Attenuation would also be greater at locations where 
headlands or sea stacks interfere with sound transmission, as shown in 
Figure 1 of the IHA application. Accordingly, the sounds produced by 
pile extraction, augering, and pile replacement would exceed background 
levels within almost all of Trinidad Harbor.
    Driving of CISS piles would occur for a total of approximately 0.5 
hours per day on each of 58 days within a 180 day period (August 1 
through January 31, 2010) (see Table 4 of the IHA application). Pile-
driving would occur during daylight hours, at which time harbor seals 
would be periodically coming to or leaving from haul-outs, and possibly 
foraging within the radius of effect around the pile-driving activity. 
Harbor seals haul-out on rocks and at small beaches at many locations 
that are widely dispersed within Trinidad Bay; the closest such haul-
out is 70 m (229.7 ft) from the pier, while the most distant is over 1 
km (0.6 mi) away near the south end of Trinidad Bay.
    Behavioral effects could result to all seals that were in the water 
within the area of effect during the portion of the day when piles were 
being driven (typically two piles per day). For instance, if seals 
spent 10 percent of the day in the water within the radius of effect, 
and assuming that the number of seals present that day was 
approximately 37 (as discussed above in the context of data presented 
by Goley et al. [2007]), then about 3.66 seals would be affected by 
each of two pile drives. Because the drives occurred during different 
parts of the day, different seals would likely be affected, resulting 
in a total impact on that day to seven or eight seals.
    The 10 percent estimate given above for the time seals spend within 
the radius of effect is a representative figure for the purposes of 
illustration. There are no data available on relative seal use of the 
haul-outs in Trinidad Bay, versus their use of waters in Trinidad Bay, 
versus their use of waters or haul-outs elsewhere. The radius of effect 
is only a small fraction of Trinidad Bay, and only a fraction of the 
rocks that comprise the Indian Beach haul-out described in Goley et al. 
(2007) are within that radius of effect. However, it is known that 
during winter months (when the construction is scheduled to occur), 
seal use of the haul-outs in Trinidad Bay likely declines because the 
seals spend a larger fraction of their time at sea, foraging in 
offshore waters (Goley, 2007). Figure 1 of the IHA application shows 
that topographic shielding by headlands blocks a large area of offshore 
habitat from potential underwater construction noise effects.
    Impacts attributable to pile removal would be similar to those of 
pile-driving, but pile removal would occur for a total of approximately 
2.5 hours per day on each of 58 days (see Table 4 of the IHA 
application). Subject to the same assumptions as described above, but 
this time with the activity being performed on an average of 3.5 piles 
per day, about 3.66 seals would be affected by each of 3.5 pile removal 
events for a total daily impact to 13 seals.
    Impacts attributable to augering would also be similar, but 
augering would occur for a total of approximately 2 hours per day on 
each of 58 days. Subject to the same assumptions as described above, 
but this time with the activity being performed on an average of two 
piles per day, about seven or eight seals would be affected by each of 
two augering events for a total daily impact to seven or eight seals. 
These numbers would vary if more or fewer seals were present in the 
area of effect, and if seals spent more or less of their time in the 
water rather than on the haul-out.
    Although harbor seals could also be affected by in-air noise and 
activity associated with construction at the pier, seals at Trinidad 
Bay haul-outs are presumably habituated to human activity to some 
extent due to the daily coming and going of fishing and recreational 
vessels, and to existing activities at the pier such as operation of 
the hoists and the loading and unloading of commercial crab boats. 
These activities may occur at any time of the day and may produce noise 
levels up to approximately 82 dB at 15.2 m (50 ft) for periods of up to 
several hours at a time. The operation of loud equipment, including the 
vibratory pile-driving rig and the auger, are above and outside of the 
range of normal activity at the pier and have the potential to could 
cause seals to leave a haul-out in Trinidad Bay. This would constitute 
Level B harassment (behavioral). To date, such behavior by harbor seals 
has not been documented in Trinidad Bay in response to current levels 
of in-air noise and activity in the harbor, but does have the potential 
to occur. On the contrary, seals have been documented often approaching 
the pier during normal fishing boat activities in anticipation of 
feeding opportunities associated with the unloading of fish and 
shellfish. This circumstance suggests seal habituation to existing 
noise levels encountered near the pier.
    Based on these examples it appears likely that few harbor seals at 
haul-outs would show a behavioral response to noise at the pier, 
particularly in view of their existing habituation to noise activities 
at the pier. The great majority of haul-out locations in Trinidad Bay 
are at least 304.8 m (1,000 ft) from the pier, but one minor haul-out 
is 70.1 m (230 ft) from the pier (Goley, pers. comm.). In view of the 
relatively large area that would be affected by elevated in-air noise, 
it appears probable that

[[Page 47170]]

some seals could show a behavioral response, despite their habituation 
to current levels of human-generated noise; incidental take by this 
mechanism may amount to an average of one seal harassed per day, when 
the activities of pile removal, augering, or pile placement are 
occurring (in addition to the seals harassed by underwater noise).
    Harbor seal presence in the activity area is perennial, with daily 
presence of an average of approximately 37 seals at a nearby haul-out 
during the months when the activity would occur. The fraction of these 
seals that would be in the activity area is difficult to estimate. 
Traditionally the seals have regarded the pier as a prime foraging area 
due to the recreational fishing activity and the unloading of fishing 
boats that occur there. During the construction period, however, these 
activities would cease, and it is plausible that the seals would modify 
their foraging behavior accordingly. Based on the analysis in the IHA 
application and here in this notice, seals would be affected once per 
day on each of 116 days when pile-driving or augering occurred, 13 
seals would be affected per day on each of 58 days when pile removal 
occurred, and one seal would be affected by in-air sound on each of 164 
days when pile removal, installation, or augering occurred. The 
potentially affected seals include adults of both sexes. Goley et al. 
(2007) states that the seals are year-round residents; that they are 
non-migratory, dispersing from a centralized location to forage; and 
that they exhibit high site fidelity, utilizing one to two haul-out 
sites within their range and rarely traveling more than 25 to 50 km 
(15.5 to 31.1mi) from these haul-outs. The winter population of seals 
in Trinidad Bay seems to consist mostly of resident seals (Goley et 
al., 2007), so it is likely that most seals in the population would be 
affected more than once over the course of the construction period. It 
is therefore possible that some measure of adaptation or habituation 
would occur on the part of the seals, whereby they would tolerate 
elevated noise levels and/or utilize haul-outs relatively distant from 
construction activities. There are a large but inventoried number of 
haul-outs within Trinidad Bay, so such a strategy is possible, but it 
is difficult to predict whether the seals would show such a response.
    Project scheduling avoids sensitive life history phases of harbor 
seals. Project activities producing underwater noise would commence in 
August. This is after the end of the annual molt, which normally occurs 
in June and July. Project activities producing underwater noise are 
scheduled to terminate at the end of January, which is a full month 
before female seals begin to seek sites suitable for pupping.
    Effects on California Sea Lions--California sea lions, although 
abundant in northern California waters, have seldom been recorded in 
Trinidad Bay (i.e, there is little published information or data with 
which to determine how they use Trinidad Bay). The low abundance in the 
area may be due to the presence of a large and active harbor seal 
population there, which likely competes with the sea lions for foraging 
resources. Any sea lions that did visit the action area during 
construction activities would be subject to the same type of impacts 
described above for harbor seals. Observed use of the area by 
California sea lions amounts to less than one percent of the number of 
harbor seals (Goley, pers. comm.); assuming a one percent utilization 
rate, total impacts to California sea lions amount to one percent of 
the effects of harbor seals, described above.
    There is a possibility of behavioral effects related to project 
acoustic impacts, in the event of California sea lion presence in the 
activity area. Based on an interview with Dr. Dawn Goley (pers. comm.), 
California sea lions have been seen in the activity area, albeit 
infrequently, and there are no quantitative estimates of the frequency 
of their occurrence. Assuming that they are present with one percent of 
the frequency of harbor seals, it is possible California sea lions 
might be subject to behavioral harassment up to one percent of the 
levels described for harbor seals. The potentially affected sea lions 
include adults of both sexes.
    Effects on Eastern Pacific Gray Whales--Goley et al. (2007) list 
the sighting rates for gray whales during eight years of monthly 
observations at Trinidad Bay. Sighting rates varied from 0 to 1.38 
whales per hour of observation time. The average detection rate during 
the period when pile removal and placement would occur, in the months 
from August through January, was 0.21 whales per hour of observation 
time. In contrast, the average detection rate in the months of February 
through July was 0.48 whales per hour. The majority of these detections 
were within 2 km (1.2 mi) of the shoreline (Goley et al., 2007). These 
data suggest that the effect rate for gray whales would be 
approximately 0.21 whales per hour. Since vibratory pile-driving of 
CISS piles would occur for a total of approximately 28.75 hours (115 
piles at 15 min drive time apiece; see Table 4 of the IHA application), 
vibratory pile-driving activities would be expected to affect 0.21 x 
28.75 = 6.04 or approximately six gray whales.
    Acoustic effects would be expected to result from pile removal, 
which is a quieter activity performed for a longer time. Approximately 
205 piles will be removed, with 40 min of vibratory pile driver noise 
for each pile, resulting in a total exposure of 136.67 hours (see Table 
4 of the IHA application). Thus this activity would be expected to 
affect 6.04 x 136.7/28.75 = 28.7 or approximately 29 gray whales.
    Acoustic effects would also be expected to result from pile 
augering, which is an even quieter activity. There will be 115 holes 
augered, with one hour of noise for each hole, resulting in a total 
exposure of 115 hours (see Table 4 of the IHA application). Thus this 
activity would be expected to affect 6.04 x 115/28.75 = 24.2 or 
approximately 24 gray whales. No mechanism other than underwater sound 
generation is expected to affect gray whales in the action area.
    The most likely number of gray whales that would be taken is 59. 
Based on the low detection rate of 0.21 whales per hour (Goley et al., 
2007), most of these take events would likely be independent, whales 
and would likely occur with adults of both sexes.
    The potential effects to marine mammals described in this section 
of the document do not take into consideration the required monitoring 
and mitigation measures described later in this document (see the 
``Mitigation'' and ``Monitoring and Reporting'' sections) which, as 
noted are designed to effect the least practicable impact on affected 
marine mammal species or stocks.

Possible Effects of Activities on Marine Mammal Habitat

    The anticipated adverse impacts upon habitat consist of temporary 
changes to water quality and the acoustic environment, as detailed in 
the IHA application and Appendix B of the BA. These changes are minor, 
temporary, and limited in duration to the period of construction. No 
restoration is needed because, as detailed in Section 6.1.6 of the BA, 
the project would have a net beneficial effect on habitat in the 
activity area by removing an existing source of stormwater discharge 
and creosote-treated wood. No aspect of the project is anticipated to 
have any permanent effect on the location of seal and sea lion haul-
outs in the area, and no permanent change in seal or sea lion use of 
haul-outs and related habitat features is anticipated to occur as a 
result of the project.

[[Page 47171]]

    The temporary impacts on water quality and acoustic environment and 
the beneficial long-term effects are not expected to have any permanent 
effects on the populations of marine mammals occurring in Trinidad Bay. 
The area of habitat affected is small and the effects are temporary, 
thus there is no reason to expect any significant reduction in habitat 
available for foraging and other habitat uses for marine mammals.
    Although artificial, the pier functions as a habitat feature. There 
would probably be a temporary cessation of seal activity in the 
immediate vicinity of the pier. It is not clear at this time how this 
would affect seal behavior. The fishing vessels that normally use the 
pier during the months when construction would occur have two options; 
they can either transfer their cargoes to smaller vessels capable of 
landing at the existing boat ramp (which is on the east side of the 
rocky headland just east of the pier, a few hundred feet away), or they 
can make temporary use of pier facilities approximately 32.2 km (20 mi) 
to the south, in Eureka. Vessels opting to travel to Eureka would 
likely represent a lost foraging opportunity for seals using Trinidad 
Bay.
    NMFS anticipates that the action will result in no impacts to 
marine mammal habitat beyond rendering the areas immediately around the 
Trinidad Pier less desirable during pile-driving and pier renovation 
operations as the impacts will be localized. Impacts to marine mammal, 
invertebrate, and fish species are not expected to be detrimental.

Mitigation

    In order to issue an Incidental Take Authorization 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 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 activity planned by the applicant includes a variety of 
measures calculated to minimize potential impacts on marine mammals, 
including:
     Timing the activity to occur during seasonal lows in 
marine mammal use of the activity area;
     Limiting activity to the hours of daylight (approximately 
7 a.m. to 7 p.m., with noise generating activities only authorized from 
one-half hour after sunrise until one-half hour before sunset);
     Use of a vibratory hammer to minimalize the noise of 
piling and removal and installation; and
     Use of trained PSOs to detect, document, and minimize 
impacts (i.e., start-up procedures [short periods of driver use with 
intervening pauses of comparable duration, performed two or three 
times, before beginning continuous driver use], possible shut-down of 
noise-generating operations [turning off the vibratory driver or auger 
so that in-air and/or underwater sounds associated with construction no 
longer exceed levels that have the potential to injure marine mammals]) 
to marine mammals, as detailed in the Marine Mammal Monitoring Plan 
(see Appendix C of the IHA application) and in paragraphs (1)-(8) of 
the monitoring and reporting provisions found in the ``Monitoring and 
Reporting'' section later in this document.

Timing Constraints for Underwater Noise

    To minimize noise impacts on marine mammals and fish, underwater 
construction activities shall be limited to the period when the species 
of concern will be least likely to be in the project area. The 
construction window for underwater construction activities shall be 
August 1, 2011 to May 1, 2012. Avoiding periods when marine mammals are 
in the action area is another mitigation measure to protect marine 
mammals from pile-driving and renovation operations.
    Implementation Assurance: Provide NMFS advance notification of the 
start dates and end dates of underwater construction activities.
    More information regarding the Trinidad Rancheria's monitoring and 
mitigation measures, as well as research conducted, (i.e., noise study 
for potential impacts to marine mammals and fish; potential impacts to 
historical, archeological and human remains; potential impacts to water 
quality during reconstruction activities; potential impacts to 
substrate and water quality during tremie concrete seal pouring; and 
potential temporary impacts to public access to the pier during 
construction operations) for the Trinidad Pier Reconstruction Project 
can be found in Appendix B of the IHA application.
    NMFS has carefully evaluated the applicant's mitigation measures 
and has considered a range of other measures in the context of ensuring 
that NMFS prescribes the means of effecting the least practicable 
impact on the affected marine mammal species and stocks and their 
habitat. NMFS's evaluation of potential measures included consideration 
of the following factors in relation in one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicality of the measure for applicant 
implementation.
    Based on NMFS's evaluation of the applicant's measures, as well as 
other measures considered by NMFS or recommended by the public, NMFS 
has determined that the mitigation measures provide the means of 
effecting the least practicable impact on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for IHAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present in the action area.
    Consistent with NMFS procedures, the following marine mammal 
monitoring and reporting shall be performed for the action:
    (1) A NMFS-approved or -qualified Protected Species Observer (PSO) 
shall attend the project site one hour prior until one hour after 
construction activities cease each day throughout the construction 
window.
    (2) The PSO shall be approved by NMFS prior to reconstruction 
operations.
    (3) The PSO shall search for marine mammals within behavioral 
harassment threshold areas as identified within the acoustic effect 
thresholds in Section 6 of Trinidad Rancheria's IHA application. The 
area observed shall depend upon the type of underwater sound being 
produced (e.g., pile extraction, augering, or pile installation). No 
practicable technology exists to allow for monitoring beyond the visual 
range at which seals and sea lions can be detected using binoculars 
(approximately 0.8 km [0.5 mi]), depending on visibility and sea state.

[[Page 47172]]

The estimated maximum distance at which PSOs will be able to visually 
detect gray whales is about 1.6 km (1 mi).
    (4) The PSO shall be present on the pier during pile-extraction, 
pile-driving and augering to observe for the presence of marine mammals 
in the vicinity of the specified activity. All such activity will occur 
during daylight hours (i.e., 30 min after sunrise and 30 min before 
sunset). If inclement weather limits visibility within the area of 
effect, the PSO will perform visual scans to the extent conditions 
allow, but activity will be stopped at any time that the observer 
cannot clearly see the water surface out to a distance of at least 30.5 
m (100 ft) from the activity. In conditions of good visibility, PSOs 
will likely be able to detect pinnipeds out to a range of approximately 
0.8 km (0.5 mi) from the pier, and to detect whales out to a range of 
approximately 1.6 km (1.0 mi) from the pier. Animals at greater 
distances likely would not be detected.
    (5) Visibility is a limiting factor during much of the winter in 
Trinidad Bay. As discussed in the BA, shut-downs during times of fog 
could well result in prolonging the construction period into the 
beginning of the pupping season for harbor seals. The estimated 
distances for Level A harassment do not exceed 4.9 m (16 ft) from the 
activity. The activities will shut-down if visibility is so poor that 
seals cannot be detected when they are at risk of injury (i.e., if 
visibility precludes observation of the area within 30.5 m [100 ft] of 
the pier). During the 30 min prior to the start of noise-generating 
activities and the quiet periods between individual noise-generating 
activities, auditory monitoring may be highly effective for detecting 
gray whales, but probably less effective for harbor seals and 
California sea lions.
    (6) The PSO will also perform auditory monitoring, and will report 
any auditory evidence of marine mammal activity. Auditory detection 
will be based only on the use of the human ear (without technological 
assistance). Auditory monitoring is effective for detecting the 
presence of gray whales in close proximity to the action area (e.g., 
blows, splashes, etc.). Close proximity varied depending on how loud 
the sound produced by the gray whale is, and on the in-air transmission 
loss rate. Auditory monitoring prior to the start of the noise-
generating activity occurs in the absence of masking noise and thus 
helps to ensure that the auditory monitoring is effective. Auditory 
monitoring is only likely more effective than visual monitoring under 
conditions of low visibility (i.e., fog) since work would only occur 
during daylight hours, at which times the transmission loss rate is 
very low. Note that there will also be many quiet periods between 
individual noisy activities, during which whales can be detected. Most 
of the work day is spent in preparing for a few noisy intervals. 
Auditory monitoring is less effective for detecting the presence of 
pinnipeds.
    (7) The PSO will scan the area of effect for at least 30 min 
continuously prior to any episode of pile-driving to determine whether 
marine mammals are present, and will continue to scan the area during 
the period of pile-driving. The scan will continue for at least 30 min 
after each in-water work episode has ceased. The scan will involve two 
visual ``sweeps'' of the area using the naked eye and binoculars. 
Typically, the sweep would be conducted slowly as follows: one sweep 
going from left to right and the other returning from right to left. 
The length of time it takes to do the sweep will depend on the amount 
of area that needs to be covered, weather conditions, and the time it 
takes the monitor to thoroughly survey the area.
    (8) Pile removal, augering, and pile placement activities will be 
shut-down if any cetacean or pinniped is about to enter or within the 
EZ determined by the estimated Level A harassment thresholds (see Table 
3 for estimated distances [above]). Since the activities would produce 
sound levels that have the unlikely potential to result in Level A 
harassment (due to the very small radii of effect), a measure such as a 
shut-down may be unnecessary, but it would be appropriate for the 
Trinidad Rancheria to shut-down and consult with NMFS if measurements 
indicate that any activities attain sound levels that reach the Level A 
harassment threshold. If any other marine mammals are observed within 
the area of effect, pile-driving will not commence. If a marine mammal 
swims into the area of effect during pile-driving, the PSO will 
identify the animal and, if it is not a harbor seal, will notify the 
Project Engineer who will notify the Contractor, and pile-driving will 
stop (i.e., shut-down). If the animal has been observed to leave the 
area of effect, or 15 min for pinnipeds and 30 min for cetaceans have 
passed since the last observation of the animal, pile-driving will 
proceed. Visual observation of the area of effect is limited to the 
area that can be practicably observable for animals to be detected, 
which is approximately 0.8 km (0.5 mi) for pinnipeds and 1.6 km (1 mi) 
for gray whales.
    (9) Whenever a construction halt is called due to marine mammals 
presence in the area, the Project Engineer (or their representative) 
shall immediately notify the designated NMFS representative.
    (10) If marine mammals are sighted by the PSO within the Level A 
and/or Level B harassment acoustic thresholds areas, the PSO shall 
record the number of marine mammals within the area of effect and the 
duration of their presence while the noise-generating activity is 
occurring. The PSO will also note whether the marine mammals appeared 
to respond to the noise and if so, the nature of that response. The PSO 
shall record the following information: date and time of initial 
sighting, tidal stage, weather, conditions, Beaufort sea state, 
species, behavior (activity, group cohesiveness, direction and speed of 
travel, etc.), number, group composition, distance to sound source, 
number of animals impacted, construction activities occurring at time 
of sighting, and monitoring and mitigation measures implemented (or not 
implemented). The observations will be reported to NMFS in a letter 
report to be submitted on each Monday, describing the previous week's 
observations.
    (11) A final report will be submitted summarizing all in-water 
construction activities and marine mammal monitoring during the time of 
the authorization, and any long term impacts from the project.
    A written log of dates and times of monitoring activity will be 
kept. The log shall report the following information:
     Time of observer arrival on site;
     Time of the commencement of underwater noise generating 
activities, and description of the activities (e.g., pile removal, 
augering, or pile installation);
     Distances to all marine mammals relative to the sound 
source;
     For harbor seal observations, notes on seal behavior 
during noise-generating activity, as described above, and on the number 
and distribution of seals observed in the project vicinity;
     For observations of all marine mammals other than harbor 
seals, the time and duration of each animal's presence in the project 
vicinity; the number of animals observed; the behavior of each animal, 
including any response to noise-generating activities; whether 
activities were halted in response to the animal's presence; and 
whether, and if so, the time of NMFS notification;
     Time of the cessation of underwater noise generating 
activities; and
     Time of observer departure from site. All monitoring data 
collected during construction will be included in the biological 
monitoring notes to be

[[Page 47173]]

submitted weekly be electronic mail. Monthly summary reports will be 
submitted to NMFS. A report summarizing the construction monitoring and 
any general trends observed will also be submitted to NMFS within 90 
days after monitoring has ended during the period of pier construction.

Underwater Noise Monitoring

    Underwater noise monitoring and reporting shall be performed 
consistent with conditions of Coastal Development Permit 1-07-046. 
Those conditions are here summarized:
    Prior to commencement of demolition and construction authorized by 
coastal development permit No. 1-07-046, the applicant shall submit a 
Hydroacoustic Monitoring Plan, containing all supporting information 
and analysis deemed necessary by the Executive Director for the 
Executive Director's review and approval. Prior to submitting the plan, 
to the Executive Director, the applicant shall also submit copies of 
the Plan to the reviewing marine biologists of the California 
Department of Fish & Game and the NMFS for their review and 
consideration.
    At a minimum, the Plan shall:
    (1) Establish the field locations of hydroacoustic monitoring 
stations that will be used to document the extent of the hydroacoustic 
hazard footprint during vibratory extrication or placement of piles or 
rotary augering activities, and provisions to adjust the location of 
the acoustic monitoring stations based on data acquired during 
monitoring, to ensure that the sound pressure field is adequately 
characterized;
    (2) Describe the method of hydroacoustic monitoring necessary to 
assess the actual conformance of the vibratory extrication or placement 
of piles or rotary augering with the dual metric exposure criteria in 
the vicinity of the vibratory extrication or placement of piles or 
rotary augering locations on a real-time basis, including relevant 
details such as the number, location, distances, and depths of 
hydrophones and associated monitoring equipment.
    (3) Include provisions to continuously record noise generated by 
the vibratory extrication or placement of piles or rotary augering in a 
manner that enables continuous and peak sound pressure and other 
measures of sound energy per strike, or other information required by 
the Executive Director in the consultation with marine biologists of 
the California Department of Fish & Game and NMFS, as well as 
provisions to supply all monitoring data that is recorded, regardless 
of whether the data is deemed ``representative'' or ``valid'' by the 
monitor (accompanying estimates of data significance, confounding 
factors, etc. may be supplied by the acoustician where deemed 
applicable). The permit also specifies reporting protocols, to be 
developed in cooperation with and approved by representatives of the 
California Coastal Commission, the California Department of Fish & 
Game, and NMFS.
    The Trinidad Rancheria would notify NMFS Headquarters and the NMFS 
Southwest Regional Office prior to initiation of the pier 
reconstruction activities. A draft final report must be submitted to 
NMFS within 90 days after the conclusion of the Trinidad Pier 
Reconstruction Project. The report would include a summary of the 
information gathered pursuant to the monitoring requirements set forth 
in the IHA, including dates and times of operations, and all marine 
mammal sightings (dates, times, locations, species, behavioral 
observations [activity, group cohesiveness, direction and speed of 
travel, etc.], tidal stage, weather conditions, sea state, activities, 
associated pier reconstruction activities). A final report must be 
submitted to the Regional Administrator within 30 days after receiving 
comments from NMFS on the draft final report. If no comments are 
received from NMFS, the draft final report would be considered to be 
the final report.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by this 
Authorization, such as an injury (Level A harassment), serious injury 
or mortality, Trinidad Rancheria shall immediately cease the specified 
activities and immediately report the incident to the Chief of the 
Permits, Conservation, and Education Division, Office of Protected 
Resources, NMFS, at 301-427-8401 and/or by e-mail to 
[email protected] and [email protected] and the Southwest 
Regional Stranding Coordinators ([email protected] and 
[email protected]). The report must include the following 
information:
     Time, date, and location (latitude/longitude) of the 
incident;
     The type of activity involved;
     Description of the circumstances during and leading up to 
the incident;
     Status of all sound source use in the 24 hours preceding 
the incident; water depth; environmental conditions (e.g., wind speed 
and direction, Beaufort sea state, cloud cover, and visibility);
     Description of marine mammal observations in the 24 hours 
preceding the incident; species identification or description of the 
animal(s) involved;
     The fate of the animal(s); and photographs or video 
footage of the animal (if equipment is available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with Trinidad 
Rancheria to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. Trinidad Rancheria 
may not resume their activities until notified by NMFS via letter, e-
mail, or telephone.
    In the event that Trinidad Rancheria discovers an injured or dead 
marine mammal, and the lead PSO determines that the cause of the injury 
or death is unknown and the death is relatively recent (i.e., in less 
than a moderate state of decomposition as described in the next 
paragraph), Trinidad Rancheria will immediately report the incident to 
the Chief of the Permits Conservation, and Education Division, Office 
of Protected Resources, NMFS, at 301-427-8401, and/or by e-mail to 
[email protected] and [email protected], and the NMFS 
Southwest Regional Office (562-980-4017) and/or by e-mail to the 
Southwest Regional Stranding Coordinators ([email protected] and 
[email protected]). The report must include the same information 
identified above. Activities may continue while NMFS reviews the 
circumstances of the incident. NMFS will work with Trinidad Rancheria 
to determine whether modifications in the activities are appropriate.
    In the event that Trinidad Rancheria discovers an injured or dead 
marine mammal, and the lead PSO determines that the injury or death is 
not associated with or related to the activities authorized (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Trinidad Rancheria shall report 
the incident to the Chief of the Permits, Conservation, and Education 
Division, Office of Protected Resources, NMFS, at 301-427-8401, and/or 
by e-mail to [email protected] and [email protected], and 
the NMFS Southwest Regional Office (562-980-4017) and/or by e-mail to 
the Southwest Regional Stranding Coordinators ([email protected] and 
[email protected]), within 24 hours of the discovery. Trinidad 
Rancheria shall provide photographs or video footage (if available) or 
other documentation of the stranded animal sighting to NMFS and the 
Marine Mammal Stranding Network.

[[Page 47174]]

Estimated Take by Incidental 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].

    Based on NMFS's assessment of the potential effects of the 
specified activities on marine mammals likely to occur within the 
action area, NMFS has determined that incidental harassment of Pacific 
harbor seals, California sea lions, and Eastern Pacific gray whales is 
anticipated for the following reasons:
    (1) Surveys have demonstrated that harbor seals are almost always 
present within the area that would be affected by underwater sound. 
Thus, it is not possible to avoid affecting harbor seals at an exposure 
level below the Level B harassment threshold. Potential effects to 
harbor seals have been minimized by constructing during a period when 
sensitive life history stages (pupping and molting) do not occur, and 
by using construction methods that generate the lowest practicable 
levels of underwater sound.
    (2) California sea lions are found among the harbor seals, at about 
one percent of the harbor seal abundance; thus there is a risk of 
incidentally affecting California sea lions at the same times and by 
the same mechanisms at an exposure level above the Level B harassment 
threshold that harbor seals are affected.
    (3) Gray whales have a high likelihood of occurring in Trinidad Bay 
during the construction period. They may not be detected by PSOs if 
they occur near the outer limits of the area of the Level B harassment 
impact zone.
    (4) The area has a high incidence of harbor fog, which complicates 
successful detection of animals when they enter waters where they may 
be exposed to sound levels in excess of the Level B harassment 
threshold. Dense fog is a common occurrence in this area in all seasons 
of the year. In 2008, for instance, the NOAA weather station in nearby 
Eureka reported 63 days of fog with visibility less than 0.4 km (0.25 
mi), and 176 cloudy days. Local anecdotal reports indicate that the 
incidence of fog is much higher on the harbor waters than on the 
adjacent uplands. Attempting to only perform underwater sound 
generating activities during periods of high visibility is therefore 
impracticable, as it would greatly prolong the time required for 
construction. For this reason it is possible that marine mammals may 
enter waters where they may be exposed to sound levels in excess of the 
Level B harassment threshold without being detected by PSOs. This is 
why the Marine Mammal Monitoring Plan (see Appendix C of the IHA 
application) provides for work stoppage when visibility is less than 
30.5 m (100 ft), and provides for auditory detection (for both cetacean 
and pinniped monitoring) in conditions of reduced visibility and 
assumes that any auditory direction represents an animal that is within 
the area with sound levels in excess of the Level B harassment 
threshold.
    Incidental take estimates are based on estimates of use of Trinidad 
Bay by various species as reported by Goley (2007 and pers. comm.). All 
reconstruction activities generating underwater sound during the 
project are expected to exceed background sound levels through Trinidad 
Bay. Table 5 in this document outlines the number of marine mammals 
that might be taken by Level B harassment from the various activities 
(both in-air and underwater estimates are provided for pinnipeds).

Table 5--Summary of the Noise Production and Anticipated Incidental Take by Level B Harassment for the Trinidad Rancheria's Action Generating In-Air and
                                                                    Underwater Noise
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Wood pile removal                           Augering                       Vibratory pile installation
            Variable             -----------------------------------------------------------------------------------------------------------------------
                                   Underwater noise      In-air noise      Underwater noise      In-air noise      Underwater noise      In-air noise
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sound Amplitude.................  156.5 dB (rms) at   104 dB at 50 ft...  150 dB (rms) at     94 dB at 50 ft....  175 dB (rms) at     104 dB at 50 ft.
                                   10.1 m (33 ft).                         15.2 m (50 ft).                         10.1 m (33 ft).
                                 -----------------------------------------------------------------------------------------------------------------------
Sound Duration Per Day (hours)..                    2.5
                                                     2
                                                   0.5.
                                 -----------------------------------------------------------------------------------------------------------------------
Activity Frequency Per Day......                     2
                                                    3.5
                                                    2.
                                 -----------------------------------------------------------------------------------------------------------------------
Number of Days *................                    58
                                                    58
                                                    58.
                                 -----------------------------------------------------------------------------------------------------------------------
Total Hours of Exposure.........                    145
                                                    116
                                                    29.
                                 -----------------------------------------------------------------------------------------------------------------------
Incidental Take of Harbor Seals   13................  1.................  7 or 8............  1.................  7 or 8............  1.
 Per Day.
Incidental Take of Harbor Seals   754...............  58................  435...............  58................  435...............  58.
 Total.
Incidental Take of California     7.5...............  0.6...............  4.4...............  0.6...............  4.4...............  0.6.
 Sea Lions Total.
Incidental Take of Gray Whales..  28.7..............  0.................  28.7..............  0.................  6.04..............  0.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: * No two activities would be performed on any given day.


[[Page 47175]]

Encouraging and Coordinating Research

    Existing knowledge gaps regarding the Trinidad Bay harbor seals 
were identified in discussions with Dr. Dawn Goley, professor, HSU. Dr. 
Goley noted that the timing and movements of the Trinidad Bay harbor 
seals are not well understood, and could be better understood by radio 
tracking studies of a representative group of seals. Dr. Goley also 
noted the uncertain relationship between Trinidad Bay and Patrick's 
Point seals, and noted that the radio tracking study might help to 
elucidate that relationship.

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.'' In making a negligible impact determination, 
NMFS considers a variety of factors, including but not limited to:
    (1) The number of anticipated injuries, serious injuries, or 
mortalities;
    (2) The number, nature, intensity, and duration of Level B 
harassment (all relatively limited);
    (3) The context in which the takes occur (i.e., impacts to areas of 
significance, impacts to local populations, and cumulative impacts when 
taking into account successive/contemporaneous actions when added to 
baseline data);
    (4) The status of stock or species of marine mammals (i.e., 
depleted, not depleted, decreasing, increasing, stable, and impact 
relative to the size of the population);
    (5) Impacts on habitat affecting rates of recruitment or survival; 
and
    (6) The effectiveness of monitoring and mitigation measures (i.e., 
the manner and degree in which the measure is likely to reduce adverse 
impacts to marine mammals, the likely effectiveness of the measures, 
and the practicability of implementation).
    For reasons stated previously in this document, and in the proposed 
notice of the IHA (76 FR 28733, May 18, 2011), the specified activities 
associated with the Trinidad Pier Reconstruction Project are not likely 
to cause PTS, or other non-auditory injury, serious injury, or death 
because of:
    (1) The likelihood that marine mammals are expected to move away 
from a noise source that is annoying prior to its becoming potentially 
injurious;
    (2) The potential for permanent hearing impairment is relatively 
low and would likely be avoided through the incorporation of the 
required monitoring and mitigation measures (described above);
    (3) The fact that cetaceans would have to be closer than 0.9 m (3 
ft), 0.3 m (1 ft), and 4.9 m (16 ft) and pinnipeds would have to be 
closer than 0 m (0 ft), 0 m (0ft), and 0.9 m (3 ft), during pile-
removal, augering, and vibratory pile-driving activities, respectively, 
to be exposed to levels of sound believed to have even a minimal chance 
of causing a permanent thresholds shift (PTS; i.e., Level A 
harassment); and
    (4) The likelihood that marine mammal detection ability by trained 
PSOs is high at close proximity to the pier.
    No injuries, serious injuries, or mortalities or alteration of 
reproductive behaviors are anticipated to occur as a result of Trinidad 
Rancheria's planned renovation operations, and none are authorized by 
NMFS. Only short-term, minor, behavioral disturbance is anticipated to 
occur due to the brief and sporadic duration of the renovation 
activities. Table 5 (above) in this document outlines the number of 
Level B harassment takes that are anticipated as a result of the 
activities. Project scheduling avoids sensitive life history phases for 
harbor seals. Project activities producing underwater noise would 
commence in August. This is after the end of the annual molt, which 
normally occurs in June and July. Project activities producing 
underwater noise are scheduled to terminate at the end of January, 
which is a full month before female seals commence to seek sites 
suitable for pupping. It is possible that severe winter storms or other 
unforeseen events could delay the conclusion of activities producing 
underwater noise, but the scheduled one month buffer between underwater 
construction and the start of pupping-related activity provides 
assurance that a reasonable level of project delays could occur without 
adverse consequences for the harbor seals. Due to the nature, degree, 
and context of Level B (behavioral) harassment anticipated and 
described (see Potential Effects on Marine Mammals section above) in 
this notice, the activity is not expected to impact rates of 
recruitment or survival for any affected species or stock.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (i.e., 24 hr cycle). 
Behavioral reactions to noise exposure (such as disruption of critical 
life functions, displacement, or avoidance of important habitat) are 
more likely to be significant if they last more than one diel cycle or 
recur on subsequent days (Southall et al., 2007). While Trinidad Pier 
operations are anticipated to occur on consecutive days, the entire 
duration of the project resulting in incidental take of marine mammals 
is not expected to last more than six months. Of the three marine 
mammal species under NMFS jurisdiction that are known to or likely to 
occur in the study area, none are listed as threatened or endangered 
under the ESA or depleted under the MMPA. To protect these animals (and 
other marine mammals in the project area), Trinidad Rancheria must 
cease operations if animals enter designated zones. No injury, serious 
injury, or mortality is expected to occur and due to the nature, 
degree, and context of the Level B harassment anticipated, the 
specified activity is not expected to impact rates of recruitment or 
survival.
    As mentioned previously, NMFS estimates that three species of 
marine mammals under its jurisdiction could be potentially affected by 
Level B harassment over the course of the IHA. For each species, these 
numbers are estimated to be small (i.e., 1,798 harbor seals [5.7 
percent], 21 California sea lions [0.02 percent], and 65 gray whales 
[0.4 percent]), less than a few percent of any of the estimated 
populations sizes based on data in this notice, and has been mitigated 
to the lowest level practicable through the incorporation of the 
monitoring and mitigation measures mentioned previously in this 
document.
    NMFS's practice has been to apply 120 dB re 1 [micro]Pa (rms) 
received level threshold for underwater non-impulse sound levels to 
determine whether take by Level B harassment occurs. Southall et al. 
(2007) provide a severity scale for ranking observed behavioral 
responses of both free-ranging marine mammals and laboratory subjects 
to various types of anthropogenic sound (see Table 4 in Southall et al. 
[2007]). Current NMFS practice, regarding exposure of marine mammals to 
high-level in-air sounds, as a threshold for potential Level B 
harassment, is at or above 90 dB re 20 [micro]Pa for harbor seals and 
at or above 100 dB re 20 [micro]Pa for all other pinniped species 
(Lawson et al., 2002; Southall et al., 2007). NMFS has not determined 
Level A harassment thresholds for marine mammals for in-air noise.
    NMFS has determined, provided that the aforementioned mitigation 
and monitoring measures are implemented, that the impact of conducting 
the renovation operations on the Trinidad Pier in Trinidad Bay, August, 
2011 through January, 2012, may result, at

[[Page 47176]]

worst, in a temporary modification in behavior and/or low level 
physiological effects (Level B harassment) of small numbers of certain 
species of marine mammals. See Table 5 (above) for the authorized take 
numbers of cetaceans and pinnipeds.
    While behavioral modifications, including temporarily vacating the 
area during the renovation operations, may be made by these species to 
avoid the resultant in-air and/or underwater acoustic disturbance, the 
availability of alternate areas within these areas and the short and 
sporadic duration of the research activities, have led NMFS to 
determine that this action will have a negligible impact on the 
specified geographic region.
    Based on the analysis contained herein of 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 Trinidad Rancheria's planned renovation 
activities of the Trinidad Pier, will result in the incidental take of 
small numbers of marine mammals, by Level B harassment only, and that 
the total taking from the construction project will have a negligible 
impact on the affected species or stocks of marine mammals; and the 
impacts to affected species or stocks of marine mammals have been 
mitigated to the lowest level practicable.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    Section 101(a)(5)(D) also requires NMFS to determine that the 
authorization will not have an unmitigable adverse effect on the 
availability of marine mammal species or stocks for subsistence use. 
There are no relevant subsistence uses of marine mammals in the study 
area that implicate MMPA section 101(a)(5)(D).

Endangered Species Act (ESA)

    On July 13, 2009, NMFS Southwest Regional Office (SWRO) received 
the U.S. Army Corps of Engineers (ACOE) July, 9, 2009, letter and 
Biological Assessment (BA), requesting initiation of informal 
consultation on the issuance of a Clean Water Act section 404 permit to 
the Trinidad Rancheria to allow in-water work associated with the 
proposed action. The BA and informal consultation request were 
submitted for compliance with Section 7(a)(2) of the ESA, as amended 
(16 U.S.C. 1531 et seq.), and its implementing regulations (50 CFR 
402). On October 27, 2009, NMFS SWRO issued a Letter of Concurrence, 
concurring with the ACOE's determination that the proposed action is 
not likely to adversely affect federally threatened Southern Oregon/
Northern California Coast (SONCC) coho salmon (Oncorhynchus kisutch), 
California Coastal (CC) Chinook salmon (Oncorhynchus tshawytscha), and 
Northern California (NC) steelhead (Oncorhynchus mykiss).
    On November 30, 2009, the NMFS SWRO issued a separate letter 
assessing project effects relative to marine mammals protected under 
the Federal ESA. NMFS's letter concurred with the ACOE's determination 
that the proposed action may affect, but is not likely to adversely 
affect the Federally threatened Steller sea lion. The USFWS has 
informed the ACOE that a formal ESA section 7 consultation is not 
necessary for any of their jurisdictional species (i.e., no listed 
species are likely to be adversely affected).

National Environmental Policy Act (NEPA)

    The ACOE, San Francisco District, has prepared a permit evaluation 
and decision document that constitutes an Environmental Assessment 
(EA), Statement of Findings, and review and compliance determination 
for the proposed action, which analyzed the project's purpose and need, 
alternatives, affected environment, and environmental effects for the 
action. NMFS has reviewed the ACOE EA for consistency with the 
regulations published by the Council of Environmental Quality (CEQ) and 
NOAA Administrative Order 216-6, Environmental Review Procedures for 
Implementing the National Environmental Policy Act, and conducted a 
separate NEPA analysis and prepared an ``Environmental Assessment for 
Issuance of an Incidental Harassment Authorization for Cher-Ae Heights 
Indian Community of the Trinidad Rancheria's Trinidad Pier 
Reconstruction Project in Trinidad, California,'' which analyzes the 
project's purpose and need, alternatives, affected environment, and 
environmental effects for the action prior to making a determination on 
the issuance of the IHA. Based on the analysis in the EA and the 
underlying information in the record, including the application, 
proposed IHA, public comments and informal ESA section 7 consultation, 
NMFS has prepared and issued a Finding of No Significant Impact 
determining that preparation of an Environmental Impact Statement is 
not required.

Essential Fish Habitat (EFH)

    The ACOE requested consultation on EFH, pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act, as amended by the 
Sustainable Fisheries Act of 1996 (Pub. L. 104-267, 16 U.S.C 1801 et 
seq.) and its implementing regulations 50 CFR 600.920(a). The ACOE 
determined that the proposed action would adversely affect EFH for 
species managed under the Pacific Coast Salmon, Pacific Coast 
Groundfish, and Coastal Pelagics Fishery Management Plans. NMFS SWRO 
determined that the proposed action would adversely affect EFH for 
species managed under the Pacific Coast Salmon, Pacific Coast 
Groundfish, and Coastal Pelagics Fishery Management Plans. Habitat will 
be lost during removal of wooden pilings; however, NMFS expected 
recolonization of the new pilings within a year. NMFS believes the 
proposed action has been designed to minimize and reduce the magnitude 
of potential effects during implementation of the proposed action. 
Therefore, NMFS provides no additional conservation recommendations. In 
addition, NMFS expects EFH will improve in the vicinity of the pier due 
to the following:
    (1) Removal and replacement of creosote-treated wooden piles with 
CISS concrete pilings;
    (2) A stormwater collection and treatment system where all 
stormwater will be collected and routed by gravity feed to an upland 
treatment cell that will provide detention, settling, and active 
filtering prior to complete infiltration;
    (3) Reduced artificial lighting effects; and
    (4) The HSU marine lab water intake associated with the pier will 
be fitted with NMFS-approved screens, minimizing the risk of 
entrainment of small prey fish species.

Authorization

    NMFS has issued an IHA to the Trinidad Rancheria for the take, by 
Level B harassment, of small numbers of three species marine mammals 
incidental to specified activities related to renovation of the 
Trinidad Pier, provided the previously mentioned mitigation, 
monitoring, and reporting requirements are incorporated.

    Dated: July 29, 2011.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2011-19809 Filed 8-3-11; 8:45 am]
BILLING CODE 3510-22-P