[Federal Register Volume 76, Number 223 (Friday, November 18, 2011)]
[Notices]
[Pages 71517-71535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29886]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA628


Takes of Marine Mammals During Specified Activities; Blasting 
Operations by the U.S. Army Corps of Engineers During the Port of Miami 
Construction Project in Miami, FL

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

ACTION: Notice; proposed Incidental Harassment Authorization; request 
for comments.

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SUMMARY: NMFS has received an application from the U.S. Army Corps of 
Engineers (ACOE) for an Incidental Harassment Authorization (IHA) to 
take small numbers of marine mammals, by harassment, incidental to 
blasting operations in the Port of Miami in Miami, Florida. NMFS has 
reviewed the application, including all supporting documents, and 
determined that it is adequate and complete. Pursuant to the Marine 
Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue an IHA to ACOE to incidentally harass, by Level B 
harassment only, marine mammals during the specified activity.

DATES: Comments and information must be received no later than December 
19, 2011.

ADDRESSES: Comments on the application should be addressed to P. 
Michael Payne, Chief, Permits and Conservation Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910. The mailbox address for providing 
email comments is [email protected]. NMFS is not responsible for 
email comments sent to addresses other than the one provided here. 
Comments sent via email, including all attachments, must not exceed a 
10-megabyte file size.
    All comments received are a part of the public record and will 
generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.
    A copy of the application containing a list of the references used 
in this document may be obtained by writing to the above address, 
telephoning the contact listed here (see FOR FURTHER INFORMATION 
CONTACT) or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    This project was previously evaluated by the ACOE under an 
Environmental Impact Statement (EIS) and a Record of Decision (ROD) for 
the proposed project was signed on May 22, 2006, which is also 
available at the same Internet address. 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 small numbers of marine 
mammals of a species or population stock, by United States 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 adverse 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.''

[[Page 71518]]

    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 number 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 May 17, 2011, NMFS received a letter from the ACOE, requesting 
an IHA. The requested IHA would authorize the take, by Level B 
(behavioral) harassment, of small numbers of Atlantic bottlenose 
dolphins (Tursiops truncatus) incidental to blasting operations in the 
Miami Harbor, Port of Miami, in Miami-Dade County, Florida. The IHA 
application was considered adequate and complete on September 9, 2011. 
The ACOE proposes to conduct four components as part of the project in 
Miami Harbor. These components are:
    (1) The widening of Cut 1 and deepening of Cut 1 and Cut 2;
    (2) Adding a turn widener and deepening at the southern 
intersection of Cut 3 within Fisherman's Channel;
    (3) Widening and deepening the Fisher Island Turning Basin; and
    (4) Expanding the Federal Channel and Port of Miami berthing areas 
in Fisherman's Channel and the Lummus Island Turning Basin.
    The construction will likely be completed using a combination of 
mechanical dredge (i.e., a clamshell or backhoe), cutterhead dredge, 
and rock pre-treatment by confined blasting. The dredging will remove 
approximately 5,000,000 cubic yards (3,822,774.3 cubic meters [m\3\]) 
of material from the harbor. Material removed from the dredging will be 
placed in Miami Harbor Ocean Dredged Material Disposal Site, or used to 
construct seagrass and reef mitigation projects.
    The blasting is proposed to take place beginning during the summer 
of 2012 (June, 2012), and is expected to take up to 24 months in Miami, 
Florida. Additional information on the construction project is 
contained in the application, which is available upon request (see 
ADDRESSES).

Description of the Proposed Specified Activities

    The ACOE proposes to deepen and widen the Federal channels at Miami 
Harbor, Port of Miami, in Miami-Dade County, Florida. The recommended 
plan (Alternative 2 of the Environmental Impact Statement [EIS]) 
includes four components:
    (1) Widen the seaward portion of Cut 1 from 500 to 800 feet (ft) 
(152.4 to 243.8 meters [m]) and deepen Cut 1 and Cut 2 from a project 
depth of -44 to -52 ft (13.4 to 15.9 m);
    (2) Add a turn widener at the southern intersection of Cut 3 within 
Fisherman's Channel and deepen to a project depth of -50 ft (-15.2 m);
    (3) Increase the Fisher Island Turning Basin from 1,200 to 1,500 ft 
(365.8 to 457.2 m), truncate the northeast section of the turning basin 
to minimize seagrass impacts, and deepen from -42 ft (-12.8 m) to a 
project depth of -50 ft; and
    (4) The Federal Channel and Port of Miami berthing areas in 
Fisherman's Channel and in the eastern end of the Lummus Island Turning 
Basin (LITB) will be expanded by 60 ft (18.3 m) to the south for a 
total of a 160 ft (48.8 m) wide berthing area and will be deepened from 
-42 ft to a project depth of -50 ft. The Federal Channel will be 
widened 40 ft (12.2 m) to the south, for a 100 ft (30.5 m) total width 
increase in Fisherman's Channel. Component 5 will deepen Fisherman's 
Channel and the LITB from -42 ft to a project depth of -50 ft. See 
Figure 1 of ACOE's IHA application for a map of the proposed project's 
components.
    Disposal of the estimated five million cubic yards of dredged 
material would occur at up to three disposal sites (seagrass mitigation 
area, offshore artificial reef mitigation areas, and the Miami Offshore 
Dredged Material Disposal Site). This project was previously evaluated 
under an Environmental Impact Statement (EIS) titled ``Miami Harbor 
Miami-Dade County, Florida Navigation Study, Final General Reevaluation 
Report and Environmental Impact Statement,'' prepared under the 
National Environmental Policy Act, and a Record of Decision for the 
proposed project was signed on May 22, 2006. The original proposed 
project included six components, two of which (four and six) have been 
removed. The EIS provides a detailed explanation of project location as 
well as all aspects of project implementation. It is also available 
online for public review at: http://www.saj.usace.army.mil/Divisions/Planning/Branches/Environmental/DOCS/OnLine/Dade/MiamiHarbor/NAV_STUDY_VOL-1_MIAMI.pdf.
    To achieve the deepening of the Miami Harbor from the existing 
depth of -45 ft (-13.7 m) to project depth of -52 ft, pretreatment of 
some of the rock areas may be required using confined underwater 
blasting, where standard construction methods are unsuccessful due to 
the hardness of the rock. The ACOE has used two criteria to determine 
which areas are most likely to need blasting for the Miami Harbor 
expansion: (1) Areas documented by core borings to contain hard and/or 
massive rock; and (2) areas previously blasted in the harbor during the 
2005 blasting and dredging project.
    The duration of the blasting is dependent upon a number of factors 
including hardness of rock, how close the drill holes are placed, and 
the type of dredging equipment that will be used to remove the 
pretreated rock. Without this information, an exact estimate of how 
many ``blast days'' will be required for the project cannot be 
determined. The harbor deepening project at Miami Harbor in 2005 to 
2006 estimated between 200 to 250 days of blasting with one shot per 
day (a blast day) to pre-treat the rock associated with that project; 
however, the contractor completed the project in 38 days with 40 
blasts. The upcoming expansion at Miami Harbor scheduled to begin in 
summer/fall of 2012 currently estimates a maximum of 600 blast days for 
the entire project footprint. While blasting events will occur only 
during the day, other operations associated with the proposed action 
will take place 24 hours a day, typically six days a week. The 
contractor may drill the blast array at night and then blast after at 
least two hours after sunrise (1 hour, plus one hour of monitoring). 
After detonation of the first explosive array, a second array may be 
drilled and detonated before the one-hour before sunset prohibition is 
triggered. Blasting activities normally will not take place on Sundays 
due to local ordinances.
    At this time, the ACOE has not selected a contractor and thus, does 
not have a contractor-developed blasting plan from the contractor 
specifically identifying the number of holes that will be drilled, the 
amount of explosives that will be used for each hole, the number of 
blasts per day (usually no more than two per a day) or the number of 
days the construction is anticipated to take to complete. The ACOE is 
required to have

[[Page 71519]]

all authorizations and permits completed (including the possession of 
an IHA) prior to the request for proposal and advertising the contract, 
per the Competition in Contracting Act, and the Federal Acquisition 
Regulations. While the ACOE does not have contract bids at this time, 
it is possible to make reasonable estimates of the bounds based on 
previous similar projects that have been conducted by the ACOE here and 
at other locations. NMFS concurs with the use of the worse case 
scenarios in order to estimate blasting activities and associated 
potential impacts.
    Blast holes are small in diameter and only 5 to 10 ft (1.5 to 3.1 
m) deep, drilling activities take place for a short time duration, with 
no more than three holes being drilled at the same time (based on the 
current drill-rigs available in the industry that range from one to 
three drills). During the 2005 blasting event, dolphins were seen near 
the drill barge during drilling events and the ACOE did not observe 
avoidance behavior. No measurements associated with noise from drilling 
small blast holes have been recorded. The ACOE does not expect 
incidental harassment from drilling operations and is not requesting 
take associated with this activity.
    Although the ACOE does not have a specific contractor-provided 
blasting plan, the ACOE developed plans and specifications for the 
project that direct the contractor to do certain things in certain ways 
and are basing these plans and specifications on the previous deepening 
project in Miami Harbor (construction was conducted in 2005 to 2006).
    The previous ACOE project in Miami Harbor required a maximum weight 
of explosives used in each delay of 376 pounds (lb) (170.6 kilograms 
[kg]) and the contractors blasted once or twice daily from June 25 to 
August 25, 2005, for a total of 40 individual blasts in 38 days of 
blasting. The 2005 project blasting was limited to Fisherman's Channel 
and the Dodge-Lummus Island Turning Basin (see Figure 2 of ACOE's IHA 
application, which shows the blasting footprint for the 2005 project), 
whereas the project described in the ACOE's application includes 
Fisherman's Channel, Dodge-Lummus Island Turning Basin, Fisher Island 
Turning Basin, and Inner and Outer Entrance Channel. This larger area 
will result in more blasting for this project than was completed in 
2005, as it includes areas not previously blasted in 2005.
    A copy of the Federal Register notice of issuance for the IHA from 
2003 (68 FR 32016, May 29, 2003), the IHA renewal from 2005 (70 FR 
21174, April 25, 2005), and the final biological monitoring report from 
the ACOE's Miami Harbor Phase II project (completed in 2006) is 
attached to the ACOE's application and available on NMFS's Web site at: 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm#iha. For the new 
construction at Miami Harbor, the ACOE expects the proposed project may 
take multiple years, and the ACOE will seek subsequent renewals of this 
IHA after issuance, with sufficient time to prevent any delay to the 
project.
    For the proposed deepening at Miami Harbor, the ACOE has consulted 
with blasting industry experts and believe, that based on the rock 
hardness and composition at Miami Harbor, a maximum charge weight per 
delay of 450 lbs (204.1 kg) should be expected. The minimum charge 
weight will be 10 lbs (4.5 kg).
    The focus of the proposed blasting work at the Miami Harbor is to 
pre-treat the massive limestone formation that makes up the base of 
Miami Harbor prior to removal by a dredge utilizing confined blasting, 
meaning the explosive shots would be ``confined'' in the rock. 
Typically, each blast array is set up in a square or rectangle area 
divided into rows and columns (see Figures 3, 4, and 5 in the ACOE's 
IHA application). An average blast array is 10 holes long by 4 holes 
wide with holes being spaced 40 ft (12.2 m) apart covering an area of 
4,000 ft\2\ (371.6 m\2\). Blast arrays near bulkheads can be long-
linear feature of one-hole wide by 8 or 10 holes long (see Figure 4 of 
the IHA application).
    In confined blasting, each charge is placed in a hole drilled in 
the rock approximately 5 to 10 ft (1.5 to 3.0 m) deep; depending on how 
much rock/concrete needs to be broken and the intended project depth. 
The hole is then capped with an inert material, such as crushed rock. 
This process is referred to as ``stemming the hole'' (see Figure 6 and 
7 of ACOE's IHA application; each bag as shown contains approximate 
volume of material used per discharge). The ACOE used this technique 
previously at the Miami Harbor Phase II project in 2005. NMFS issued an 
IHA for that operation on May 22, 2003 (68 FR 32016, May 29, 2003) and 
renewed the IHA on April 19, 2005 (70 FR 21174, April 25, 2005).
    For the Port of Miami expansion project (Miami Harbor Phase II) 
that used blasting as a pre-treatment technique, the stemming material 
was angular crushed rock. (Stemming is the process of filling each 
borehole with crushed rock after the explosive charge has been placed. 
After the blasting charge has been set, then the chain of explosives 
within the rock is detonated. Stemming reduces the strength of the 
outward pressure wave produced by blasts.) The optimum size of stemming 
material is material that has an average diameter of approximately 0.05 
times the diameter of the blast-hole. The selected material must be 
angular to perform properly (Konya, 2003). For the ACOE's proposed 
project, specifications will be prepared by the geotechnical branch of 
the Jacksonville District.
    In the Miami Harbor Phase II project, the following requirements 
were in the specifications regarding stemming material:

1.22.9.20 Stemming

    All blast holes shall be stemmed. The Blaster or Blasting 
Specialist shall determine the thickness of stemming using blasting 
industry conventional stemming calculations. The minimum stemming 
shall be 2 ft (0.6 m) thick. Stemming shall be placed in the blast 
hole in a zone encompassed by competent rock. Measures shall be 
taken to prevent bridging of explosive materials and stemming within 
the hole. Stemming shall be clean, angular to sub-angular, hard 
stone chips without fines having an approximate diameter of \1/2\ 
inch (in; 1.3 centimeters [cm]) to \3/8\ in (1 cm). A barrier shall 
be placed between the stemming and explosive product, if necessary, 
to prevent the stemming from setting into the explosive product. 
Anything contradicting the effectiveness of stemming shall not 
extend through the stemming (see Figure 6 of ACOE's IHA application 
for a typical drill hole configuration with stemming).

    The specifications for any construction utilizing the blasting for 
the deepening of Miami Harbor would have similar stemming requirements 
as those that were used for the Miami Harbor Phase II project in 2005 
to 2006. The length of stemming material would vary based on the length 
of the hole drilled, however minimum lengths would be included in the 
project specific specifications. Studies have shown that stemmed blasts 
have up to a 60 to 90 percent decrease in the strength of the pressure 
wave released, compared to open water blasts of the same charge weight 
(Nedwell and Thandavamoorthy, 1992; Hempen et al., 2005; Hempen et al., 
2007). However, unlike open water (unconfined) blasts (see Figure 8 of 
ACOE's IHA application), very little peer-reviewed research exists on 
the effects that confined blasting can have on marine animals near the 
blast (Keevin et al., 1999). The visual evidence from a typical 
confined blast is shown in Figure 9 of ACOE's IHA application.
    In confined blasting, the detonation is conveyed from the drill 
barge to the

[[Page 71520]]

primer and the charge itself by Primacord and Detaline. These are used 
to safety fire the blast from a distance to ensure human safety from 
the blast. The Primacord and Detaline used on this project have a 
specific grain weight, and they burn like a fuse. They are not 
electronic. The time delay from activation to detonation of the charge 
is less than one second.
    As part of the development of the protected species monitoring and 
mitigation protocols, which will be incorporated into the plans and 
specification for the proposed project, ACOE will continue to 
coordinate with the resource agencies and non-governmental 
organizations (NGOs) to address concerns and potential impacts 
associated with the use of blasting as a construction technique.
    To estimate the maximum poundage of explosives that may be utilized 
for this proposed project, the ACOE has reviewed two previous blasting 
projects, one at San Juan Harbor, Puerto Rico in 2000, and one at Miami 
Harbor, Florida in 2005. The San Juan Harbor project's heaviest blast 
event using explosives was 375 lbs (170.1 kg) per delay and in Miami it 
was 376 lbs (170.6 kg) per delay. Based on discussion with the ACOE's 
geotechnical engineers, it is expected that the maximum weight of 
delays for Miami Harbor will be larger since the rock is much harder 
than what is seen at the Port of Miami.
    Based upon industry standards and ACOE Safety & Health Regulations, 
the blasting program may consist of the following:
     The weight of explosives to be used in each blast will be 
limited to the lowest poundage of explosives that can adequately break 
the rock.
     Drill patterns are restricted to a minimum of 8 ft (2.4 m) 
separation from a loaded hole.
     Hours of blasting are restricted from two hours after 
sunrise to one hour before sunset to allow for adequate observation of 
the proposed project area for marine mammals.
     Selection of explosive products and their practical 
application method must address vibration and air blast (overpressure) 
control for protection of existing structures and marine wildlife.
     Loaded blast holes will be individually delayed to reduce 
the maximum lbs per delay at point detonation, which in turn will 
reduce the mortality radius.
     The blast design will consider matching the energy in the 
``work effort'' of the borehole to the rock mass or target for 
minimizing excess energy vented into the water column or hydraulic 
shock.
     Delay timing adjustments with a minimum of 8 milliseconds 
(ms) between delay detonations to stagger the blast pressures and 
prevent cumulative addition of pressures in the water.

Test Blast Program

    Prior to implementing a construction blasting program, a test blast 
program will be completed. The test blast program will have all the 
same protective monitoring and mitigation measures in place for 
protected species as blasting operations for construction purposes. The 
purpose of the test blast program is to demonstrate and/or confirm the 
following:
     Drill boat capabilities and production rates;
     Ideal drill pattern for typical boreholes;
     Acceptable rock breakage for excavation;
     Tolerable vibration level emitted;
     Directional vibration; and
     Calibration of the environment.
    The test blast program begins with a single range of individually 
delayed holes and progresses up to the maximum production blast 
intended for use. The test blast program will take place in the 
proposed project area and will count toward the pre-treatment of 
material, since the blasts of the test blast program will be cracking 
rock. Each test blast is designed to establish limits of vibration and 
air blast overpressure, with acceptable rock breakage for excavation. 
The final test event simulates the maximum explosive detonation as to 
size, overlying water depth, charge configuration, charge separation, 
initiation methods, and loading conditions anticipated for the typical 
production blast.
    The results of the test blast program will be formatted in a 
regression analysis with other pertinent information and conclusions 
reached. This will be the basis for developing a completely engineered 
procedure for the construction blasting plan.
    During the test blast program, the following data will be used to 
develop a regression analysis:
     Distance;
     Pounds per delay;
     Peak particles velocities (Threshold Limit Value [TVL]);
     Frequencies (TVL);
     Peak vector sum; and
     Air blast, overpressure.
    Additional details regarding the proposed blasting and dredging 
project can be found in the ACOE's IHA application and EIS. The EIS can 
also be found online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

Description of the Proposed Dates, Duration, and Specified Geographic 
Region

    At this time the ACOE has not yet a specific date for the 
initiation of construction activities within the Port of Miami. 
However, the ACOE requests that the IHA to be issued by NMFS by 
November 30, 2011, to allow for the advertisement of the contract for 
construction in January, 2012; award the contract and provide the 
notice to proceed to the selected in May, 2012 to the selected 
contractor, resulting in construction work beginning after June, 2012. 
The proposed construction activities are expected to take up to 24 
months and at this time, it is possible that blasting could take place 
at any time during construction. The ACOE also notes that multiple IHAs 
(up to three) will be needed and requested for this project due to the 
project duration.
    The proposed blasting activities will be limited to waters 
shallower than 60 ft (18.3 m), and located entirely on the continental 
shelf and will not take place seaward of the outer reef. The specified 
geographic area of the construction will be within the boundaries of 
the Port of Miami, in Miami, Florida (see Figure 11 of the ACOE's IHA 
application). The Port of Miami is an island facility consisting of 518 
upland acres and is located in the northern portion of Biscayne Bay in 
South Florida. The City of Miami is located on the west side of the 
Biscayne Bay; the City of Miami Beach is located on an island on the 
northeast side of Biscayne Bay, opposite of Miami. Both cities are 
located in Miami-Dade County, Florida, and are connected by several 
causeways crossing the bay. The Port of Miami is the southernmost major 
port on the Atlantic Coast. The Port of Miami's landside facilities are 
located on Dodge-Lummus Island, which has a GPS location 25[deg] 
46'05'' North 80[deg] 09'40'' West. See Figure 11 of the ACOE's IHA 
application for more information on the location of the proposed 
project area in the Port of Miami.

Description of Marine Mammals in the Area of the Proposed Specified 
Activity

    Several cetacean species and a single species of sirenian are known 
to or could occur in the Miami Harbor action area and off the Southeast 
Atlantic coastline (see Table 1 below). Species listed as endangered 
under the U.S. Endangered Species Act (ESA), includes the humpback 
(Megaptera novaeangliae), sei (Balaenoptera borealis), fin 
(Balaenoptera physalus), blue (Balaenoptera musculus), North Atlantic 
right (Eubalaena glacialis), and

[[Page 71521]]

sperm (Physeter macrocephalus) whale, and West Indian (Florida) manatee 
(Trichechus manatus latirostris). The marine mammals that occur in the 
Atlantic Ocean off the U.S. southeast coast belong to three taxonomic 
groups: mysticetes (baleen whales), odontocetes (toothed whales), and 
sirenians (the manatee). The West Indian manatee in Florida and U.S. 
waters is managed under the jurisdiction of the U.S. Fish and Wildlife 
Service (USFWS) and therefore is not considered further in this 
analysis.
    Table 1 below outlines the marine mammal species and their habitat 
in the region of the proposed project area.

    Table 1--The Habitat and Conservation Status of Marine Mammals Inhabiting the Proposed Study Area in the
                                   Atlantic Ocean off the U.S. Southeast Coast
----------------------------------------------------------------------------------------------------------------
               Species                         Habitat                  ESA \1\                  MMPA \2\
----------------------------------------------------------------------------------------------------------------
Mysticetes:
    North Atlantic right whale         Coastal and shelf......  EN.....................  D.
     (Eubalaena glacialis).
    Humpback whale (Megaptera          Pelagic, nearshore       EN.....................  D.
     novaeangliae).                     waters, and banks.
    Bryde's whale (Balaenoptera        Pelagic and coastal....  NL.....................  NC.
     brydei).
    Minke whale (Balaenoptera          Shelf, coastal, and      NL.....................  NC.
     acutorostrata).                    pelagic.
    Blue whale (Balaenoptera           Pelagic and coastal....  EN.....................  D.
     musculus).
    Sei whale (Balaenoptera borealis)  Primarily offshore,      EN.....................  D.
                                        pelagic.
    Fin whale (Balaenoptera physalus)  Slope, mostly pelagic..  EN.....................  D.
Odontocetes:
    Sperm whale (Physeter              Pelagic, deep seas.....  EN.....................  D.
     macrocephalus).
    Cuvier's beaked whale (Ziphius     Pelagic................  NL.....................  NC.
     cavirostris).
    Gervais' beaked whale (Mesoplodon  Pelagic................  NL.....................  NC.
     europaeus).
    True's beaked whale (Mesoplodon    Pelagic................  NL.....................  NC.
     mirus).
    Blainville's beaked whale          Pelagic................  NL.....................  NC.
     (Mesoplodon densirostris).
    Dwarf sperm whale (Kogia sima)...  Offshore, pelagic......  NL.....................  NC.
    Pygmy sperm whale (Kogia           Offshore, pelagic......  NL.....................  NC.
     breviceps).
    Killer whale (Orcinus orca)......  Widely distributed.....  NL.....................  NC.
                                                                EN (Southern Resident).  D (Southern Resident,
                                                                                          AT1 Transient).
    Short-finned pilot whale           Inshore and offshore...  NL.....................  NC.
     (Globicephala macrorhynchus).
    False killer whale (Pseudorca      Pelagic................  NL.....................  NC.
     crassidens).
    Mellon-headed whale                Pelagic................  NL.....................  NC.
     (Peponocephala electra).
    Pygmy killer whale (Feresa         Pelagic................  NL.....................  NC.
     attenuata).
    Risso's dolphin (Grampus griseus)  Pelagic, shelf.........  NL.....................  NC.
    Bottlenose dolphin (Tursiops       Offshore, Inshore,       NL.....................  NC.
     truncatus).                        coastal, and estuaries.                          S (Biscayne Bay and
                                                                                          Central Florida
                                                                                          Coastal stocks).
                                                                                         D (Western North
                                                                                          Atlantic Coastal).
    Rough-toothed dolphins (Steno      Pelagic................  NL.....................  NC.
     bredanensis).
    Fraser's dolphin (Lagenodelphis    Pelagic................  NL.....................  NC.
     hosei).
    Striped dolphin (Stenella          Pelagic................  NL.....................  NC.
     coeruleoalba).
    Pantropical spotted dolphin        Pelagic................  NL.....................  NC.
     (Stenella attenuata).                                                               D (Northeastern
                                                                                          Offshore).
    Atlantic spotted dolphin           Coastal to pelagic.....  NL.....................  NC.
     (Stenella frontalis).
    Spinner dolphin (Stenella          Mostly pelagic.........  NL.....................  NC.
     longirostris).                                                                      D (Eastern).
    Clymene dolphin (Stenella          Pelagic................  NL.....................  NC.
     clymene).
Sirenians:

[[Page 71522]]

 
    West Indian (Florida) manatee      Coastal, rivers, and     EN.....................  D.
     (Trichechus manatus latirostris).  estuaries.
----------------------------------------------------------------------------------------------------------------
\1\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, NL = Not listed.
\2\ U.S. Marine Mammal Protection Act: D = Depleted, S = Strategic, NC = Not classified.

    The one species of marine mammal under NMFS jurisdiction known to 
commonly occur in close proximity to the proposed blasting area of the 
Port of Miami is the Atlantic bottlenose dolphin, specifically the 
stocks living near the Port of Miami within Biscayne Bay (the Biscayne 
Bay stock) or transiting the outer entrance channel (Western North 
Atlantic Central Florida Coastal stock).

Atlantic Bottlenose Dolphin

    Atlantic bottlenose dolphins are distributed worldwide in tropical 
and temperate waters, and in U.S. waters occur in multiple complex 
stocks along the U.S. Atlantic coast. The coastal morphotype of 
bottlenose dolphins is continuously distributed along the Atlantic 
coast south of Long Island, New York, to the Florida peninsula, 
including inshore waters of the bays, sounds, and estuaries. Except for 
animals residing within the Southern North Carolina and Northern North 
Carolina Estuarine Systems (e.g., Waring et al., 2009), estuarine 
dolphins along the U.S. east coast have not been previously included in 
stock assessment reports. Several lines of evidence support a 
distinction between dolphins inhabiting coastal waters near the shore 
and those present in the inshore waters of the bays, sounds, and 
estuaries. Photo-identification (photo-ID) and genetic studies support 
the existence of resident estuarine animals in several inshore areas of 
the southeastern United States (Caldwell, 2001; Gubbins, 2002; Zolman, 
2002; Mazzoil et al., 2005; Litz, 2007), and similar patterns have been 
observed in bays and estuaries along the Gulf of Mexico coast (Well et 
al., 1987; Balmer et al., 2008). Recent genetic analyses using both 
mitochondrial DNA and nuclear microsatellite markers found significant 
differentiation between animals biopsied along the coast and those 
biopsied within the estuarine systems at the same latitude (NMFS, 
unpublished data). Similar results have been found off the west coast 
of Florida (Sellas et al., 2005).

Biscayne Bay Stock

    Biscayne Bay is a shallow estuarine system located along the 
southeast coast of Florida in Miami-Dade County. The Bay is generally 
shallow (depths greater than 5 m [16.4 ft]) and includes a diverse 
range of benthic communities including seagrass beds, soft coral and 
sponge communities, and mud flats. The northern portion of Biscayne Bay 
is surrounded by the cities of Miami and Miami Beach and is therefore 
heavily influenced by industrial and municipal pollution sources. The 
water flow in this portion of Biscayne Bay is very restricted due to 
the construction of dredged islands (Bialczak et al., 2001). In 
contrast, the central and southern portions of Biscayne Bay are less 
influenced by development and are better flushed. Water exchange with 
the Atlantic Ocean occurs through a broad area of grass flats and tidal 
channels termed the Safety Valve. Biscayne Bay extends south through 
Card Sound and Barnes Sound, and connects through smaller inlets to 
Florida Bay.
    The Biscayne Bay stock of bottlenose dolphins is bounded by 
Haulover Inlet to the north and Card Sound Bridge to the south. This 
range corresponds to the extent of confirmed home ranges of bottlenose 
dolphins observed residing in Biscayne Bay by a long-term photo-ID 
study conducted by the Southeast Fisheries Science Center (Litz, 2007; 
SEFSC unpublished data). It is likely that the range of Biscayne Bay 
dolphins extends past these boundaries; however, there have been few 
surveys outside of this range. These boundaries are subject to change 
upon further study of dolphin home ranges within the Biscayne Bay 
estuarine system and comparison to an extant photo-ID catalog from 
Florida Bay to the south.
    Dolphins residing within estuaries north of this stock along the 
southeastern coast of Florida are currently not included in a stock 
assessment report. There are insufficient data to determine whether 
animals in this region exhibit affiliation to the Biscayne Bay stock, 
the estuarine stock further to the north in the Indian River Lagoon 
Estuarine System (IRLES), or are simply transient animals associated 
with coastal stocks. There is relatively limited estuarine habitat 
along this coastline; however, the Intracoastal Waterway extends north 
along the coast to the IRLES. It should be noted that during 2003 to 
2007, there were three stranded bottlenose dolphins in this region in 
enclosed waters. One of these had signs of human interaction from a 
boat strike and another was identified as an offshore morphotype of 
bottlenose dolphin.
    Bottlenose dolphins have been documented in Biscayne Bay since the 
1950's (Moore, 1953). Live capture fisheries for bottlenose dolphins 
are known to have occurred throughout the southeastern U.S. and within 
Biscayne Bay during the 1950's and 1960's; however, it is unknown how 
many individuals may have been removed from the population during this 
period (Odell, 1979; Wells and Scott, 1999).
    The Biscayne Bay bottlenose dolphin stock has been the subject of 
an ongoing photo-ID study conducted by the NMFS SEFSC since 1990. From 
1990 to 1991, preliminary information was collected focusing on the 
central portion of Biscayne Bay. The survey was re-initiated in 1994, 
and it was expanded to include the northern portion of Biscayne Bay and 
south to the Card Sound Bridge in 1995 (SEFSC unpublished data; Litz, 
2007). Through 2007, the photo-ID catalog included 229 unique 
individuals. Approximately 80% of these individuals may be long-term 
residents with multiple sightings over the 17 years of the study 
(SEFSC, unpublished data). Analyses of the sighting histories and 
associations of individuals from the Biscayne Bay segregated along a 
north/south gradient (Litz, 2007).
    Remote biopsy samples of Biscayne Bay animals were collected 
between 2002 and 2004 for analyses of population genetic structure and 
persistent organic pollutant concentrations in blubber. Genetic 
structure was investigated using both mitochondrial DNA and nuclear 
(microsatellite) markers, and the data from Biscayne Bay were compared 
to data from Florida Bay dolphins to the south (Litz, 2007). Within 
Biscayne Bay, dolphins sighted primarily in the northern half of 
Biscayne Bay were significantly differentiated from those sighted 
primarily in the southern half at the microsatellite loci but not at 
the

[[Page 71523]]

mitochondrial locus. There was not sufficient genetic information 
between these groups to indicate true population subdivision (Litz, 
2007). However, genetic differentiation was found between the Biscayne 
Bay and Florida Bay dolphins in both markers (Litz, 2007). The observed 
genetic differences between resident animals in Biscayne Bay and those 
in an adjacent estuary combined with the high levels of sight fidelity 
observed, demonstrate that the resident Biscayne Bay bottlenose 
dolphins are a demographically distinct population stock.
    The total number of bottlenose dolphins in the Biscayne Bay stock 
is unknown. During small boat surveys between 2003 and 2007, 157 unique 
individuals were identified using standard methods, however, this 
catalog size does not represent a valid estimate of population size 
because the residency patterns of dolphins in Biscayne Bay is not fully 
understood. Litz (2007) determined that 69 animals in Biscayne Bay have 
a northern home range. Based on Waring et al. (2010), the maximum 
population of animals that may be in the proposed project area is equal 
to the total number of uniquely identified animals for the entire 
photo-ID study of Biscayne Bay--229 individuals. Present data are 
insufficient to calculate a minimum population estimate, and to 
determine the population trends, for the Biscayne Bay stock of 
bottlenose dolphins. The total human-caused mortality and serious 
injury for this stock is unknown and there is insufficient information 
available to determine whether the total fishery-related mortality and 
serious injury for this stock is insignificant and approaching zero 
mortality and serious injury rate. Documented human-caused mortalities 
in recreational fishing gear entanglement and ingestion of gear 
reinforce concern for this stock. Because the stock size is currently 
unknown, but likely small and relatively few mortalities and serious 
injuries would exceed potential biological removal, NMFS considers this 
stock to be a strategic stock.

Western North Atlantic Central Florida Coastal Stock

    On the Atlantic coast, Scott et al. (1988) hypothesized a single 
coastal migratory stock ranging seasonally from as far north as Long 
Island, to as far south as central Florida, citing stranding patterns 
during a high mortality event in 1987 to 1988 and observed density 
patterns. More recent studies demonstrate that the single coastal 
migratory stock hypothesis is incorrect, and there is instead a complex 
mosaic of stocks (McLellan et al., 2003; Rosel et al., 2009).
    The coastal morphotype is morphologically and genetically distinct 
from the larger, more robust morphotype primarily occupying habitats 
further offshore (Hoelzel et al., 1998; Mead and Potter, 1995; Rosel et 
al., 2009). Aerial surveys conducted between 1978 and 1982 (CETAP, 
1982) north of Cape Hatteras, North Carolina, identified two 
concentrations of bottlenose dolphins, one inshore of the 82 ft (25 m) 
isobath and the other offshore of the 164 ft (50 m) isobath. The lowest 
density of bottlenose dolphins was observed over the continental shelf, 
with higher densities along the coast and near the continental shelf 
edge. It was suggested, therefore, that north of Cape Hatteras, North 
Carolina, the coastal morphotype is restricted to waters less than 82 
ft deep (Kenney, 1990). Similar patterns were observed during summer 
months in more recent aerial surveys (Garrison and Yeung, 2001; 
Garrison et al., 2003). However, south of Cape Hatteras during both 
winter and summer months, there was no clear longitudinal discontinuity 
in bottlenose dolphin sightings (Garrison and Yeung 2001; Garrison et 
al., 2003). To address the question of distribution of coastal and 
offshore morphotypes in waters south of Cape Hatteras, tissue samples 
were collected from large vessel surveys during the summers of 1998 and 
1999, from systematic biopsy sampling efforts in nearshore waters from 
New Jersey to central Florida conducted in the summers of 2001 and 
2002, and from winter biopsy collection effort in 2002 and 2003 in 
nearshore continental shelf waters of North Carolina and Georgia. 
Additional biopsy samples were collected in deeper continental shelf 
waters south of Cape Hatteras during the winter of 2002. Genetic 
analyses using mitochondrial DNA sequences of these biopsies identified 
individual animals to the coastal or offshore morphotype. Using the 
genetic results from all surveys combined, a logistic regression was 
used to model the probability that a particular bottlenose dolphin 
group was of the coastal morphotype as a function of environmental 
variables including depth, sea surface temperature, and distance from 
shore. These models were used to partition the bottlenose dolphin 
groups observed during aerial surveys between the two morphotypes 
(Garrison et al., 2003).
    The genetic results and spatial patterns observed in aerial surveys 
indicate both regional and seasonal differences in the longitudinal 
distribution of the two morphotypes in coastal Atlantic waters. 
Generally, from biopsy samples collected, the coastal morphotype is 
found in nearshore waters, the offshore morphotype in deeper waters and 
a spatial overlap between the two morphotypes in intermediate waters. 
More information on the seasonal differences and genetic studies off of 
the Carolina's, Georgia, and Florida, differentiating morphotypes of 
bottlenose dolphins can be found online in the NMFS stock assessment 
reports.
    In summary, the primary habitat of the coastal morphotype of 
bottlenose dolphin extends from Florida to New Jersey during summer 
months and in waters less than 65.6 ft (20 m) deep, including estuarine 
and inshore waters.
    In addition to inhabiting coastal nearshore waters, the coastal 
morphotype of bottlenose dolphin also inhabits inshore estuarine waters 
along the U.S. east coast and Gulf of Mexico (Wells et al., 1987; Wells 
et al., 1996; Scott et al., 1990; Weller, 1998; Zolman, 2002; Speakman 
et al., 2006; Stolen et al., 2007; Balmer et al., 2008; Mazzoil et al., 
2008). There are multiple lines of evidence supporting demographic 
separation between bottlenose dolphins residing within estuaries along 
the Atlantic coast. In Biscayne Bay, Florida, there is a similar 
community of bottlenose dolphins with evidence of year-round residents 
that are genetically distinct from animals residing in a nearby estuary 
in Florida Bay (Litz, 2007). A few published studies demonstrate that 
there are significant genetic distinctions and differences between 
animals in nearshore coastal waters and estuarine waters (Caldwell, 
2001; Rosel et al., 2009). Despite evidence for genetic differentiation 
between estuarine and nearshore populations, the degree of spatial 
overlap between these populations remains unclear. Photo-ID studies 
within estuaries demonstrate seasonal immigration and emigration and 
the presence of transient animals (e.g., Speakman et al., 2006). In 
addition, the degree of movement of resident estuarine animals into 
coastal waters on seasonal or shorter time scales is poorly understood. 
However, for the purposes of this analysis, bottlenose dolphins 
inhabiting primarily estuarine habitats are considered distinct from 
those inhabiting coastal habitats. Initially, a single stock of coastal 
morphotype bottlenose dolphins was thought to migrate seasonally 
between New Jersey (summer months) and central Florida based on 
seasonal patterns in strandings during a large scale mortality event 
occurring during 1987 to 1988 (Scott et al., 1988). However, re-
analysis of

[[Page 71524]]

stranding data (McLellan et al., 2003) and extensive analysis of 
genetic (Rosel et al., 2009), photo-ID (Zolman, 2002) and satellite 
telemetry (NMFS, unpublished data) data demonstrate a complex mosaic of 
coastal bottlenose dolphin stocks. Integrated analysis of these 
multiple lines of evidence suggests that there are five coastal stocks 
of bottlenose dolphins: The Northern Migratory and Southern Migratory 
stocks, a South Carolina/Georgia Coastal stock, a Northern Florida 
Coastal stock, and a Central Florida Coastal stock.
    The spatial extent of these stocks, their potential seasonal 
movements, and their relationships with estuarine stocks are poorly 
understood. More information on the migratory movements and genetic 
analyses of bottlenose dolphins can be found online in the NMFS stock 
assessment reports.
    The NMFS stock assessment report addresses the Central Florida 
Coastal stock, which is present in coastal Atlantic waters from 
29.4[deg] North south to the western end of Vaca Key (approximately 
24.69[deg] North to 81.11[deg] West) where the stock boundary for the 
Florida Keys stock begins (see Figure 1 of the NMFS Stock Assessment 
Report). There has been little study of bottlenose dolphin stock 
structure in coastal waters of southern Florida; therefore the southern 
boundary of the Central Florida stock is uncertain. There is no obvious 
boundary defining the offshore extent of this stock. The combined 
genetic and logistic regression analysis (Garrison et al., 2003) 
indicated that in waters less than 32.8 ft (10 m) depth, 70% of the 
bottlenose dolphins were of the coastal morphotype. Between 32.8 ft and 
65.6 ft depth, the percentage of animals of the coastal morphotype 
dropped precipitously, and at depths greater than 131.2 ft (40 m) 
nearly all (greater than 90%) animals were of the offshore morphotype. 
These spatial patterns may not apply in the Central Florida Coastal 
stock, as there is a significant change in the bathymetric slope and a 
close approach of the Gulf Stream to the shoreline south of Cape 
Canaveral.
    Aerial surveys to estimate the abundance of coastal bottlenose 
dolphins in the Atlantic were conducted during winter (January to 
February) and summer (July to August) of 2002. Abundance estimates for 
bottlenose dolphins in each stock were calculated using line-transect 
methods and distance analysis (Buckland et al., 2001). More information 
on the survey tracklines, design, effort, animals sighted, and methods 
for calculating estimated abundance can be found online in the NMFS 
stock assessment reports.
    The estimated best and minimum population for the Central Florida 
Coastal Stock is 6,318 and 5,094 animals, respectively. There are 
insufficient data to determine the population trends for this stock. 
From 1995 to 2001, NMFS recognized only a single migratory stock of 
coastal bottlenose dolphins in the western North Atlantic, and the 
entire stock was listed as depleted. This stock structure was revised 
in 2002 to recognize both multiple stocks and seasonal management units 
and again in 2008 and 2010 to recognize resident estuarine stocks and 
migratory and resident coastal stocks. The total U.S. fishery-related 
mortality and serious injury for the Central Florida Coastal stock 
likely is less than 10% of the calculated PBR, and thus can be 
considered to be insignificant and approaching zero mortality and 
serious injury rate. However, there are commercial fisheries 
overlapping with this stock that have no observer coverage. This stock 
retains the depleted designation as a result of its origins from the 
originally delineated depleted coastal migratory stock. The species is 
not listed as threatened or endangered under the ESA, but this is a 
strategic stock due to the depleted listing under the MMPA.
    Further information on the biology and local distribution of these 
species and others in the region can be found in ACOE's IHA 
application, 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 on Marine Mammals

    In general, potential impacts to marine mammals from explosive 
detonations could include mortality, serious injury, as well as Level A 
harassment (injury) and Level B harassment. In the absence of 
monitoring and mitigation, marine mammals may be killed or injured as a 
result of an explosive detonation due to the response of air cavities 
in the body, such as the lungs and bubbles in the intestines. Effects 
are likely to be most severe in near surface waters where the reflected 
shock wave creates a region of negative pressure called ``cavitation.''
    A second potential possible cause of mortality is the onset of 
extensive lung hemorrhage. Extensive lung hemorrhage is considered 
debilitating and potentially fatal. Suffocation caused by lung 
hemorrhage is likely to be the major cause of marine mammal death from 
underwater shock waves. The estimated range for the onset of extensive 
lung hemorrhage to marine mammals varies depending upon the animal's 
weight, with the smallest mammals having the greatest potential hazard 
range.
    NMFS's criteria for determining non-lethal injury (Level A 
harassment) from explosives are the peak pressure that will result in: 
(1) The onset of slight lung hemorrhage, or (2) a 50 percent 
probability level for a rupture of the tympanic membrane (TM). These 
are injuries from which animals would be expected to recover on their 
own.
    NMFS has established dual criteria for what constitutes Level B 
harassment: (1) An energy based temporary threshold shift (TTS) 
received sound levels 182 dB re 1 [mu]Pa\2\-s cumulative energy flux in 
any \1/3\ octave band above 100 Hz for odontocetes (derived from 
experiments with bottlenose dolphins (Ridgway et al., 1997; Schlundt et 
al., 2000); and (2) 12 psi peak pressure cited by Ketten (1995) as 
associated with a safe outer limit for minimal, recoverable auditory 
trauma (i.e., TTS). The Level B harassment zone, therefore, is the 
distance from the mortality, serious injury, injury (Level A 
harassment) zone to the radius where neither of these criterion is 
exceeded.

[[Page 71525]]



     Table 2--NMFS's Threshold Criteria and Metrics Utilized for Impact Analyses From the Use of Explosives
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
            Mortality                       Level A Harassment            Level B Harassment  Level B Harassment
                                            (Non-lethal injury)             (Non-injurious;     (Non-injurious
                                                                                TTS and         behavioral, Sub-
                                                                               associated             TTS)
                                                                               behavioral
                                                                            disruption [dual
                                                                               criteria])
----------------------------------------------------------------------------------------------------------------
31 psi-msec (onset of severe      205 dB re 1         13 psi-msec         182 dB re 1         177 dB re 1
 lung injury [mass of dolphin      [mu]Pa\2\[middot]   positive pressure   [mu]Pa\2\[middot]   [mu]Pa\2\[middot]
 calf]).                           s EFD (50 percent   (onset of slight    s EFD*; 23 psi      s EFD* (for
                                   of animals would    lung injury).       peak pressure (<    multiple
                                   experience TM                           2,000 lb) 12 psi    detonations only)
                                   rupture).                               peak pressure (<=
                                                                           2,000 lb).
----------------------------------------------------------------------------------------------------------------
* Note: In greatest \1/3\-octave band above 10 Hz or 100 Hz.

    The primary potential impact to the Atlantic bottlenose dolphins 
occurring in the Port of Miami action area from the proposed 
detonations is Level B harassment incidental to noise generated by 
explosives. In the absence of any monitoring or mitigation measures, 
there is a very small chance that a marine mammal could be injured, 
seriously injured, or killed when exposed to the energy generated from 
an explosive force on the sea floor. However, the ACOE and NMFS 
believes that the proposed monitoring and mitigation measures will 
preclude this possibility in the case of this particular proposed 
activity.
    Non-lethal injurious impacts (Level A harassment) are defined in 
this proposed IHA as TM rupture and the onset of slight lung injury. 
The threshold for Level A harassment corresponds to a 50 percent rate 
of TM rupture, which can be stated in terms of an energy flux density 
(EFD) value of 205 dB re 1 [mu]Pa\2\s. TM rupture is well-correlated 
with permanent hearing impairment (Ketten, 1998) indicates a 30 percent 
incidence of permanent threshold shift (PTS) at the same threshold. The 
farthest distance from the source at which an animal is exposed to the 
EFD level for the Level A harassment threshold is unknown at this time.
    Level B (non-injurious) harassment includes temporary (auditory) 
threshold shift (TTS), a slight, recoverable loss of hearing 
sensitivity. One criterion used for TTS is 182 dB re 1 [mu]Pa[sup2] s 
maximum EFD level in any \1/3\-octave band above 100 Hz for toothed 
whales (e.g., dolphins). A second criterion, 23 psi, has been 
established by NMFS to provide a more conservative range of TTS when 
the explosive or animals approaches the sea surface, in which case 
explosive energy is reduced, but the peak pressure is not. For the 
proposed project in Miami Harbor, the distance from the blast array at 
which the 23 psi threshold could be met for various charge detonation 
weights can be, and has been calculated.
    Level B harassment may also include behavioral modifications 
resulting from repeated noise exposures (below TTS) to the same animals 
(usually resident) over a relatively short period of times. Threshold 
criteria for this particular type of harassment are currently still 
being considered. One recommendation is a level of 6 dB below TTS (see 
69 FR 21816, April 22, 2004), which would be 177 dB re 1 [mu]Pa\2\s. 
The Level B harassment (behavioral) threshold criteria would not apply 
to the ACOE's proposed activity because there will only two blasting 
events a day, and the multiple (staggered) detonations are within a few 
microseconds of each other and do not last more than a few seconds in 
total duration per a blasting event.
    For an open-water, unconfined blast, the pressure edge of the 
danger zone is expected to be 23 psi. For a fully confined blast, the 
pressure at the edge of the danger zone is expected to be 6 psi. 
Utilizing the pressure data collected the Miami Harbor Phase II project 
in 2005, for a maximum charge weight of 450 lbs in a fully confined 
blast, the pressure is expected to be 22 psi approximately 700 ft 
(213.4 m) from the blast, which is below the threshold for Level B 
harassment (i.e., 23 psi criteria for explosives less than 2,000 lb). 
However to ensure the protection of marine mammals, and in case of an 
incident where a detonation is not fully confined, the ACOE assumes 
that any animal within the boundaries of a designated ``danger zone'' 
would be taken by Level B harassment.
    The ACOE is planning to implement a series of monitoring and 
mitigation measures to protect marine mammals from the potential 
impacts of the proposed blasting activities. The ACOE has designated a 
``danger zone'' as the area within which the potential for Level B 
harassment occurs, and the ``exclusion zone'' as the area within which 
if an animal crosses and enters that zone then the blast will be 
delayed until the animal leaves the zone of its own volition. The 
exclusion zone is larger than the area where the ACOE has determined 
that Level B harassment will occur, so if the monitoring and mitigation 
measures implemented are successful as expected, and no detonation 
occurs when an animals is inside of the exclusion zone, no take by 
Level B harassment is likely to occur. However, to be conservative, the 
ACOE has calculated the potential exists for Level B harassment and is 
pursuing an IHA from NMFS. More information on how the danger and 
exclusion zones are determined is included in the ``Proposed 
Mitigation'' section of this document (see below).
    It has been noted on one previous occasion at the ACOE's Miami 
Harbor Phase II project in 2005 that a bottlenose dolphin outside the 
exclusion zone, in the deeper water channel, exhibited a startle 
response immediately following a blast. Details of that event from the 
monitoring report are included below:

    Any animals near the exclusion zone were watched carefully 
during the blast for any changes in behavior or noticeable reaction 
to the blast. The only observation that showed signs of a possible 
reaction to the blast was on July 27, when two dolphins were in the 
channel west of the blast. The dolphins were stationary at 
approximately 2,400 ft (731.5 m) from the blast array, feeding and 
generally cavorting. Due to the proximity of the dolphins, the drill 
barge was contacted prior to the blast to confirm that the exclusion 
zone calculation was 1,600 ft (487.7 m) for the lower weight of 
explosives used that day. The topography of the bottom in that area 
is very shallow (approximately 3.3 ft [1 m]) to the south, then an 
exceptionally steep drop off into the channel at 40 plus ft ending 
at the bulkhead wall to the north. Westward, the channel continues 
and has a more gradual upward slope. At the time of the blast, one 
of the dolphins was at the surface in the shallows, while the other 
dolphin was underwater within the channel. The dolphin that was 
underwater showed a strong reaction to the blast. The animal jumped 
fully out of the water in a `breaching' fashion; behavior that had 
not been exhibited prior to the blast. The animal was observed 
jumping out of the water immediately before the observers heard the 
blast suggesting that the animal reacted to the blast and not some 
other stimulus. It is probable that, because this animal was located 
in the channel, the sound and pressure of the blast traveled either 
farther or was more focused through

[[Page 71526]]

the channeling and the reflection from the bulkhead, thus causing 
the animal to react even though it was well outside the safety 
radius. These two dolphins were tracked for the entire 30 min post 
blast period and no obvious signs of distress or behavior changes 
were observed. Other animals observed near the safety radius during 
the blast were all to the south of the blasting array, well up on 
the seagrass beds or in the pipe channel that runs through the 
seagrass beds. None of these animals showed any reaction to the 
blast.

    Individual dolphins from other stocks and within the Biscayne Bay 
and Western North Atlantic Central Florida Coastal stocks potentially 
move both inshore and offshore of Biscayne Bay due to the openness of 
this bay system and closeness of the outer continental shelf. These 
movements are not fully understood and the possibility exists that 
these other stocks may be affected in the same manner as the Biscayne 
Bay and Western North Atlantic Central Florida Coastal stocks.
    Based on the data from the Miami Harbor project in 2005 and the 
implementation of the proposed monitoring and mitigation measures, the 
ACOE and NMFS expects limited potential effects of the proposed 
construction and blasting activities on marine mammals in the Port of 
Miami action area.

Potential Effects on Marine Mammal Habitat

    The ACOE and NMFS are unable to determine if resident bottlenose 
dolphins in the proposed action area utilize the inner and outer 
channels, walls, and substrate of the Port of Miami as habitat for 
feeding, resting, mating, or other biologically significant functions. 
The bottom of the channel has been previously blasted, and the rock and 
sand dredged. The walls of the channels are composed of vertical rock. 
The ACOE acknowledges that while the port may not be suitable foraging 
habitat for bottlenose dolphins in Biscayne Bay, it is likely that 
dolphins may use the area to traverse to and from North Biscayne Bay or 
offshore via the main channel (i.e., Government Cut).
    The ACOE and NMFS are unable to determine how the temporary 
modification of the action area by the proposed construction and 
blasting activities will potentially impact the two stocks of 
bottlenose dolphins expected to be present in the Port of Miami. If 
animals are using the Port of Miami to travel from south to north 
Biscayne Bay or vice-versa and/or exiting the bay via the main shipping 
channel, the proposed construction and blasting activities may delay or 
detour their movements.
    Blasting within the boundaries of the Port of Miami will be limited 
both spatially and temporally. The explosives utilized in the proposed 
blasting operations are water soluble and non-toxic. If an explosive 
charge is unable to be fired and must be left in the drill hole, it is 
designed to break down. Also, each drill hole has a booster with 
detonator and detonation cord. Most of the detonation cord is recovered 
onto the drill barge by pulling it back onboard the drill barge after 
the blasting event. Small amounts of detonation cord may remain in the 
water after the blasting event has taken place, and will be recovered 
by small vessels with scoop nets. Any material left in the drill hole 
after the blast event will be recovered through the dredging process, 
when the cutterhead dredge excavates the fractured rock material.
    With regard to prey species (mainly fish), a very small number of 
fish are expected to be impacted by the proposed Miami Harbor project, 
based on the results of the 2005 blasting project in Miami Harbor. That 
project consisted of 40 blast events over a 38 day time frame. Of these 
40 blast events, 23 were monitored (57.5% of the total) by the state 
and injured and dead fish were collected after the all clear was given 
(the ``all-clear'' is normally at least two to three min after the shot 
is fired, since seagulls and frigate birds quickly learned to approach 
the blast site and swoop in to eat some of the stunned, injured, and 
dead fish floating on the surface of the water). State biologists and 
volunteers collected the carcasses of the floating fish (note that not 
all dead fish float after a blasting event, and due to safety concerns, 
there are no plans to put divers on the bottom of the channel in the 
blast zone to collect non-floating fish carcasses. The fish were 
described to the lowest taxonomic level possible (usually species) and 
the injury types were categorized. The data forms are available from 
the FWC and ACOE upon request.
    A summary of those data shows that 24 different genera were 
collected during the previous Miami Harbor blasting project. The 
species with the highest abundance were white grunts (Haemulon plumier, 
N = 51), scrawled cowfish (Lactophrys quadricornis, N = 43), and pygmy 
filefish (Monocanthus setifer, N = 30). The total fish collected during 
the 23 blasts was 288 or an average of 12.5 fish per blast (range 3 to 
38). In observation of the three blasts with the greatest number of 
fish killed (see Table 4 of ACOE's application) and reviewing the 
maximum charge weight per delay for the Miami Harbor project, it 
appears that there is no direct correlation between the charge weight 
and fish killed that can be determined from such a small sample. 
Reviewing the 23 blasting events where dead and injured fish were 
collected after the ``all-clear'' signal was given, no discernable 
pattern exists. Factors that affect fish mortality include, but are not 
limited to fish size, body shape (fusiform, etc.), proximity of the 
blast to a vertical structure like a bulkhead (e.g., see the August 10, 
2005 blast event, a much smaller charge weight resulted in a higher 
fish kill due to the closeness of a bulkhead).

 Table 3--Confined Blast Maximum Charge Weight and Number of Fish Killed
                    During Miami Harbor 2005 Project
------------------------------------------------------------------------
                                         Max charge
                Date                    weight/delay       Fish killed
                                            (lb)
------------------------------------------------------------------------
July 25, 2005.......................               112                35
July 26, 2005.......................                85                38
August 10, 2005.....................                17                28
------------------------------------------------------------------------

    In the past, to reduce the potential for fish to be injured or 
killed by the blasting, the resource agencies have requested, and ACOE 
has allowed that blasting contractors utilize a small, unconfined 
explosive charge, usually a 1 lb (0.5 kg) booster, detonated about 30 
seconds before the main blast, to drive fish away from the blasting 
zone. It is assumed that noise or pressure generated by the small 
charge will drive fish from the immediate area, thereby reducing 
impacts from the larger and potentially more-damaging blast. Blasting 
companies use this method as a ``good faith effort'' to reduce the 
potential impacts to aquatic natural resources. The explosives industry

[[Page 71527]]

recommends firing a ``warning shot'' to frighten fish out of the area 
before seismic exploration work is begun (Anonymous, 1978 in Keevin et 
al., 1997).
    There are limited data available on the effectiveness of fish scare 
charges at actually reducing the magnitude of fish kills, and the 
effectiveness may be based on the fish's life history. Keevin et al. 
(1997) conducted a study to rest if fish scare charges are effective in 
moving fishes away from blast zones. They used three freshwater species 
(i.e., largemouth bass (Micropterus salmoides), channel catfish 
(Ictalurus punctatus), and flathead catfish (Pylodictis olivaris), 
equipping each fish with an internal radio tag to allow the fishes 
movements to be tracked before and after the scare charge. Fish 
movement was compared with a predicted lethal dose (LD) 0% mortality 
distance for an open water shot (no confinement) for a variety of 
charge weights. Largemouth bass showed little response to repelling 
charges and none would have moved from the kill zone calculated for any 
explosive size. Only one of the flathead catfish and two of the channel 
catfish would have moved to a safe distance for any blast. This means 
that only 11% of the fish used in the study would have survived the 
blast events.
    These results call into question the true effectiveness of this 
minimization methodology; however, some argue that based on the 
monetary value of fish (American Fishery Society, 1992 in Keevin et 
al., 1997), including the high value commercial or recreational species 
like snook (Centropomus undecimalis) and tarpon (Megalops atlanticus) 
found in southeast Florida inlets like Port Everglades, the low cost 
associated with repelling charge use would be offset if only a few fish 
moved from the kill zone (Keevin et al., 1997).
    To calculate the potential loss of prey species from the proposed 
project area as an impact of the blasting events, the ACOE used a 12.5 
fish kill per blasting event estimate based on the Miami Harbor 2005 
project, and multiplied it by the 40 shots, reaching a total estimate 
of 500 floating fish. As stated previously, not all carcasses float to 
the surface and there is no way to estimate how many carcasses did not 
float. Using an estimate of 12.5 fish kill per blasting event, and the 
maximum 600 detonations for the entire multi-year proposed project, the 
minimum number of fish expected to be killed by the proposed project is 
approximately 7,500 fish across the entire 28,500 ft (8,686.8 m) long 
channel footprint, assuming the worst case scenario and the entire 
channel needs to be blasted.
    NMFS anticipates that the proposed action will result in no 
significant impacts to marine mammal habitat beyond rendering the areas 
immediately around the Port of Miami less desirable shortly after each 
blasting event and during dredging operations and potentially 
eliminating a relatively small amount of locally available prey. The 
impacts will be localized and instantaneous. Impacts to marine mammal 
habitat, as well as invertebrate and fish species are not expected to 
be significantly detrimental.
Proposed Mitigation
    In order to issue an Incidental Take Authorization (ITA) under 
section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable adverse impact on such species or stock 
and its habitat, paying particular attention to rookeries, mating 
grounds, and areas of similar significance, and on the availability of 
such species or stock for taking for certain subsistence uses.
    Over the last 10 years, the ACOE's Jacksonville District has been 
collecting data concerning the effects of confined blasting projects on 
marine mammals. This effort began in the early 1990's when the ACOE 
contracted with Dr. Calvin Koyna, Precision Blasting Services, to 
review previous ACOE blasting projects. The ACOE also received 
recommendations from the Florida Fish and Wildlife Conservation 
Commission (FWC, then known as the Florida Department of Natural 
Resources) and the USFWS to prepare for a harbor deepening project at 
Port Everglades, Florida, which was conducted in the mid-1980's. The 
recommendations prepared for the project were specifically aimed at 
protecting endangered manatees and endangered and threatened sea 
turtles.
    The ACOE will develop and implement four zones as protective 
measures that are based on the use of an unconfined blast. The use of 
unconfined blast in development of these protective zones for a 
confined blast will increase the conservation measures afforded marine 
mammals in the proposed action area. These four zones are referred to 
as the danger zone (i.e., inner most zone, located closest to the 
blast), the exclusion zone (i.e., the danger zone plus 500 ft (152.4 m) 
to add an additional layer of conservatism for marine mammals), the 
safety zone (i.e., the third zone), and the watch zone (i.e., the outer 
most zone). All of these zones are noted in Figure 11 of ACOE's IHA 
application and described in further detail in this section of the 
document (see below). Of these four zones, only the danger zone, is 
associated with an MMPA threshold. The danger zone has been determined 
to be larger than or equal to the threshold for Level B harassment, as 
defined by the MMPA. Injury (Level A harassment), serious injury, or 
mortality, as defined by the MMPA, are expected to occur at closer 
distances to the blasting array within the danger zone.
    These four zone calculations will be included as part of the 
specifications package that the contractors will bid on before the 
project is awarded.
    As part of the ACOE's Miami Harbor Phase II project, the ACOE 
monitored the blasting project and collected data on the pressures 
associated with confined blasts, while employing a formula to calculate 
buffer and exclusion zones that would protect marine mammals. Results 
from the pressure monitoring at Miami Harbor Phase II demonstrate that 
stemming each drill hole reduces the blast pressure entering the water 
(Nedwell and Thandavamoorthy, 1992; Hemen et al., 2005; Hempen et al., 
2007).
    The following standard conditions have been incorporated into the 
proposed project specifications to reduce the risk to marine mammals in 
the proposed project area. While this application is specific to 
bottlenose dolphins, these specifications are written for all protected 
species that may be in the proposed project area.
    If blasting is proposed during the period of November 1 through 
March 31, significant operational delays should be expected due to the 
increased likelihood of manatees being present within the proposed 
project area. If possible, avoid scheduling proposed blasting during 
the period from November 1 through March 31. In the area where blasting 
could occur or any area where blasting is required to obtain channel 
design depth, the following marine mammal protective measures shall be 
employed, before, during, and after each blast:
    (A) The FWC, the USFWS, and NMFS must review the contractor's 
approved Blasting Plan prior to any blasting activities. Copies of this 
blasting plan shall be provided to FDEP and FWC as a matter of comity. 
This blasting proposal must include information concerning a watch 
program and details of the blasting events. This information must be 
submitted at least 30 days prior to the proposed date of the blast(s) 
to the following addresses:

[[Page 71528]]

    (1) FWC-ISM, 620 South Meridian Street, Mail Stop 6A, Tallahassee, 
FL 32399-1600 or [email protected].
    (2) NMFS Office of Protected Resources, 1315 East-West Highway, 
Silver Spring, MD 20910.
    (3) USFWS, 1339 20th Street, Vero Beach, Florida 32960-3559 or 6620 
Southpoint Drive South, Suite 310, Jacksonville, FL 32216-0912 (project 
location dependent).
    (4) NMFS Southeast Regional Office, Protected Species Management 
Branch, 263 13th Avenue South, St. Petersburg, FL 33701.
    In addition to plan review, Dr. Allen Foley should be notified at 
the initiation and completion of all in-water blasting 
([email protected]).
    (B) The proposed project specifications shall include at least the 
following information:
    (1) A list of Protected Species Observers (PSOs), their 
qualifications, and positions for the watch, including a map depicting 
the proposed locations for boat or land-based PSOs. Qualified PSOs must 
have prior on-the-job experience observing for protected species during 
previous in-water blasting events where the blasting activities were 
similar in nature to this project.
    (2) The amount of explosive charge proposed, the explosive charge's 
equivalency in TNT, how it will be executed (depth of drilling, 
stemming, in-water, etc.), a drawing depicting the placement of the 
charges, size of the exclusion zone, and how it will be marked (also 
depicted on a map), tide tables for the blasting event(s), and 
estimates of times and days for blasting events (with an understanding 
this is an estimate, and may change due to weather, equipment, etc.).
    (C) For each explosive charge placed, three zones will be 
calculated, denoted on monitoring reports and provided to PSOs before 
each blast for incorporation in the watch plan for each planned 
detonation. All of the zones will be noted by buoys for each of the 
blasts. These zones are:
    (1) Danger Zone: The danger zone radius is equal to 260 (79.25 m) 
times the cube root of the weight of the explosive charge in lbs per 
delay (equivalent weight of tetryl or TNT). The radius of the danger 
zone has been determined to be equal to or larger than the distance 
from the charge to a location where a marine mammal would experience 
Level B harassment.

Danger zone (ft) = 260 (lbs/delay) 1/3

    Danger Zone Development: The radius of the danger zone will be 
calculated to determine the maximum distance from the blast at which 
mortality to marine mammals is likely to occur. The danger zone was 
determined by the amount of explosives used within each delay (which 
can contain multiple boreholes). The original basis of this calculation 
was to protect human U.S. Navy Seal divers from underwater detonations 
of underwater mines (Goertner, 1982). Goertner's calculations were 
based on impacts to terrestrial animals in water when exposed to a 
detonation suspended in the water column (unconfined blast) as 
researched by the U.S. Navy in the 1970's (Yelverton et al., 1973; 
Richmond et al., 1973). Additionally, observations of sea turtle injury 
and mortality associated with unconfined blasts for the cutting of oil 
rig structures in the Gulf of Mexico (Young, 1991; Young and O'Keefe, 
1994) were also incorporated in this radius beyond its use by the Navy. 
The State of Florida has adopted this method for the protection of 
marine mammals (particularly the Florida manatee) within state waters 
(FWC, 2005) in the document entitled, ``May 2005 Guidelines for the 
Protection of Marine Mammals and Sea Turtles during the Use of 
Explosives in the Waters of the State of Florida.''
    The U.S. Navy Dive Manual and the FWC Guidelines (2005) set the 
danger zone formula for an unconfined blast suspended in the water 
column, which is as follows:

R = 260(W) 1/3

Where:

R = radius of the danger zone in ft
W = weight of the explosive charge in lbs (tetryl or TNT)

This formula is conservative for the blasting being done by the ACOE in 
the Port of Miami since the blast will be confined with the rock and 
not suspended in the water column. The reduction of impact by confining 
the shots more than compensates for the presumed higher sensitivity of 
marine mammals. The ACOE and NMFS believes that the radius of the 
danger zone, coupled with a strong marine mammal monitoring and 
protection plan is a conservative, but prudent approach to the 
protection of marine mammals in the action area.

    (2) Exclusion Zone: The exclusion zone radius is equal to the 
danger zone plus a buffer of 500 ft. Detonation will not occur if a 
marine mammal is known to be (or based on previous sightings, may be) 
within the exclusion zone.

Exclusion zone (ft) = danger zone + 500 ft

    Exclusion Zone Development: The exclusion zone is not associated 
with any threshold of take, as defined by the MMPA, as it is larger 
than the danger zone, where Level B harassment is expected. The 
exclusion zone was developed during consultations with the FWC during 
the 2005 to 2006 Phase II dredging and blasting project in Miami 
Harbor. FWC requested a larger ``no blast'' radius due to the high 
number of manatees documented in the vicinity of the Port of Miami, 
particularly utilizing the Bill Sadowski Wildlife Area directly south 
of the port and north of Virginia Key. The ACOE concurred with this 
request and added a second zone with an additional 500 ft radius above 
the calculated radius of the danger zone. To be consistent with the 
previous blasting activities at Miami Harbor, and since the blasting 
will take place in the same area, with the same concerns about the 
proximity of manatees to the blasting sites along Fisherman's Channel, 
the ACOE proposes to maintain the exclusion zone.
    (3) Safety Zone: The safety zone is equal to 520 (158.50 m) times 
the cube root of the weight of the explosive charge in lbs per delay 
(equivalent weight of tetryl or TNT).

Safety zone (ft; two times the size of the danger zone) = 520 (lbs/
delay) 1/3

    Safety Zone Development: The safety zone is not associated with any 
threshold of take, as defined by the MMPA, as it is larger than the 
danger zone, where Level B harassment is expected. The safety zone was 
developed to be an area of ``heightened awareness'' of protected 
species (e.g. dolphins, manatees, and sea turtles) entering the blast 
area, without triggering a shut-down. This area triggers individual 
specific monitoring of each individual or group of animals as they 
transit in, out, or through the designated zones.
    (4) Watch Zone: The watch zone is three times the radius of the 
danger zone to ensure that animals entering or traveling close to the 
exclusion zone are sighted and appropriate actions can be implemented 
before or as the animal enters the any impact areas (i.e., a delay in 
blasting activities).

Watch zone (ft; three times the size of the Danger Zone) = 3 [260 (lbs/
delay) 1/3]

    Watch Zone Development: The watch zone is not associated to any 
threshold of take, as defined by the MMPA, as it is larger than the 
danger zone, where Level B harassment is expected. The watch zone is 
the area that can be typically covered by a small helicopter based on 
the blasting site, flight speed,

[[Page 71529]]

flight height, and available fuel to ensure effective mitigation-
monitoring of the proposed project area.
    (D) The watch program shall begin at least one hour prior to the 
scheduled start of blasting to identify the possible presence of marine 
mammals. The watch program shall continue for at least 30 minutes (min) 
after detonations are complete.
    (E) The watch program shall consist of a minimum of six PSOs. Each 
PSO shall be equipped with a two-way radio that shall be dedicated 
exclusively to the watch. Extra radios should be available in case of 
failures. All of the PSOs shall be in close communication with the 
blasting sub-contractor in order to halt the blast event if the need 
arises. If all PSOs do not have working radios and cannot contact the 
primary PSO and the blasting sub-contractor during the pre-blast watch, 
the blast shall be postponed until all PSOs are in radio contact. PSOs 
will also be equipped with polarized sunglasses, binoculars, a red flag 
for back-up visual communication, and a sighting log with a map to 
record sightings. All blasting events will be weather dependent. 
Climatic conditions must be suitable for optimal viewing conditions, to 
be determined by the PSOs.
    (F) The watch program shall include a continuous aerial survey to 
be conducted by aircraft, as approved by the Federal Aviation 
Administration (FAA). The blasting event shall be halted if an 
animal(s) is sighted within the exclusion zone, within the five min 
before the explosives are scheduled to be detonated. An ``all clear'' 
signal must be obtained from the aerial PSO before the detonation can 
occur. The blasting event shall be halted immediately upon request of 
any of the PSOs. If animals are sighted, the blast event shall not take 
place until the animal(s) moves out of the exclusion zone under its own 
volition. Animals shall not be herded away or intentionally harassed 
into leaving. Specifically, the animals must not be intentionally 
approached by project watercraft or aircraft. If the animal(s) is not 
sighted a second time, the event may resume 30 min after the last 
sighting.
    (G) An actual delay in blasting only occurs when a marine mammal 
was located within the exclusion zone at the point where the blast 
countdown reaches the T-minus five min. At that time, if an animal is 
in or near the safety zone, the countdown is put on hold until the zone 
is completely clear of marine mammals and all 30 min sighting holds 
have expired. Animal movements into the safety zone prior to that point 
are monitored closely, but do not necessarily stop the countdown. The 
exception to this would be stationary animals that do not appear to be 
moving out of the area or animals that begin moving into the safety 
zone late in the countdown. For these cases, holds on the T-minus 15 
min may be called to keep the shipping channel open and minimize the 
impact on the Port of Miami operations.
    (H) The PSOs and contractors shall evaluate any problems 
encountered during blasting events and logistical solutions shall be 
presented during blasting events and logistical solutions shall be 
presented to the Contracting Officer. Corrections to the watch shall be 
made prior to the next blasting event. If any one of the aforementioned 
conditions is not met prior to or during the blasting, the watch PSOs 
shall have the authority to terminate the blasting event, until 
resolution can be reached with the Contracting Officer. The Contracting 
Officer will contact FWC, USFWS, and NMFS.
    (I) If an injured or dead marine mammal is sighted after the blast 
event, the PSOs on watch shall contact the ACOE and the ACOE will then 
contact the proper Federal and/or state natural resource agencies.
    The PSOs shall maintain contact with the injured or dead marine 
mammal until authorities have arrived. Blasting shall be postponed 
until consultations are reinitiated and completed, and determinations 
can be made of the cause of injury or mortality. If blasting injuries 
are documented, all demolition activities shall cease. The ACOE will 
then submit a revised blasting plan to FWC, USFWS, and NMFS for review.
    (J) Within 30 days after completion of all blasting events, the 
primary PSO shall submit a report the ACOE, who will provide it to the 
FWC, USFWS, and NMFS, providing a description of the event, number and 
location of animals seen and what actions were taken when animals were 
seen. Any problems associated with the event and suggestions for 
improvements shall also be documented in the report.

Proposed Monitoring for Mitigation

    The ACOE will rely upon the same monitoring protocol developed for 
the Port of Miami project in 2005 (Barkaszi, 2005) and published in 
Jordan et al. (2007), which can be found online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The monitoring protocol is 
summarized here:
    A watch plan will be formulated based on the required monitoring 
radii and optimal observation locations. The watch plan will consist of 
at least five PSOs including at least one aerial PSO, two boat-based 
PSOs, and two PSOs stationed on the drill barge (see Figures 13, 14, 
15, and 16 of the ACOE's IHA application). This watch plan will be 
consistent with the program that was utilized successfully at Miami 
Harbor in 2005. The sixth PSO will be placed in the most optimal 
observation location (boat, barge, or aircraft) on a day-by-day basis 
depending on the location of the blast and the placement of dredging 
equipment. This process will ensure complete coverage of the four zones 
as well as any critical areas. The watch will begin at least one hour 
prior to each blast and continue for one half hour after each blast 
(Jordan et al., 2007).
    The aerial PSO will fly in a turbine engine helicopter (bell jet 
ranger) with the doors removed. This provided maximum visibility of the 
watch and safety zones as well as exceptional maneuverability and the 
needed flexibility for continual surveillance without fuel stops or 
down time, minimization of delays due to weather or visibility and the 
ability to deliver post-blast assistance. Additionally, at least six 
commercial helicopter, small Cessna, and ultra-light companies operate 
on Key Biscayne, immediately south of the Port of Miami and offer 
``flight-seeing'' operations over downtown Miami, Bayfront, and the 
Port of Miami. Recreational use of ultra-lights launching from Key 
Biscayne is also common in the area, as are overflights of commercial 
seaplanes, jet aircraft, and helicopters. The proposed action area 
being monitored is a high traffic area, surrounded by an urban 
environment where animals are potentially exposed to multiple 
overflights daily. ACOE conferred with Mary Jo Barkaszi, owner and 
chief PSO of ECOES, Inc., a protected species monitoring company with 
25 years experience, and has worked on the last five blasting events 
involving marine mammal concerns for the ACOE throughout the country. 
All of these blasting events had bottlenose dolphins commonly occur in 
the project area. Ms. Barkaszi states that in her experience, she has 
not observed bottlenose dolphins diving or fleeing the area because a 
helicopter is hovering nearby at 500 ft (pers. comm., September 12, 
2011). During monitoring events, the helicopter hovers at 500 ft above 
the watch zone and only drops below that level when helping to confirm 
identification of something small in the water, like a sea turtle. The 
ACOE and NMFS do not expect the incidental take of bottlenose dolphins, 
by Level B harassment, from helicopter-based

[[Page 71530]]

monitoring of the blasting operations and the ACOE is not requesting 
take.
    Boat-based PSOs are placed on one of two vessels, both of which 
have attached platforms that place the PSOs eyes at least 10 ft (3 m) 
above the water surface enabling optimal visibility of the water from 
the vessels. The boat-based PSOs cover the safety zone where waters are 
deep enough to safely operate the boats without any impacts to seagrass 
resources. The shallow seagrass beds south of the proposed project site 
relegate the PSO boats mainly to the channel east and west of the blast 
zone. At no time are any of the PSO boats allowed in shallow areas 
where propellers could potentially impact the fragile seagrass.
    At times, turbidity in the water may be high and visibility through 
the water column may be reduced so that animals are not seen below the 
surface as they should be under normal conditions. This may be more 
common on an ebb tide. However, animals surfacing in these conditions 
are still routinely sighted from the air and from the boats, thus the 
overall PSO program is not compromised, only the degree to which 
animals were tracked below the surface. Adjustments to the program are 
made accordingly so that all protected species are confirmed out of the 
safety zone prior to the T-minus five min, just as they are under 
normal visual conditions. The waters within the proposed project area 
are exceptional for observation so that the decreased visibility below 
the surface during turbid conditions make the waters more typical of 
other port facilities where PSO programs are also effective throughout 
the U.S., for example New York and Boston harbors, where this 
monitoring method has also been employed.
    All PSOs are equipped with marine-band VHF radios, maps of the 
blast zone, polarized sunglasses, and appropriate data sheets. 
Communications among PSOs and with the blaster is of critical 
importance to the success of the watch plan. The aerial-based PSO is in 
contact with vessel and drill barge-based PSOs and the drill barge with 
regular 15 min radio checks throughout the watch period. Constant 
tracking of animals spotted by any PSO is possible due to the amount 
and type of PSO coverage and the excellent communications plan. Watch 
hours are restricted to between two hours after sunrise and one hour 
before sunset. The watch begins at least one hour prior to the 
scheduled blast and is continuous throughout the blast. Watch continues 
for at least 30 min post blast at which time any animals that were seen 
prior to the blast are visually relocated whenever possible and all 
PSOs in boats and in the aircraft assisted in cleaning up any blast 
debris.
    If any marine mammals are spotted during the watch, the PSO 
notifies the aerial-based PSO and/or the other PSOs via radio. The 
animals is located by the aerial-based PSO to determine its range and 
bearing from the blast array. Initial locations and all subsequent re-
acquisitions are plotted on maps. Animals within or approaching the 
safety zone are tracked by the aerial and boat-based PSOs until they 
exited the safety zone. Anytime animals are sighted near the safety 
zone, the drill barge is alerted as to the animal's proximity and some 
indication of any potential delays it might cause.
    If any animal(s) is sighted inside the safety zone and not re-
acquired, no blasting is authorized until at least 30 min has elapsed 
since the last sighting of that animal(s). The PSOs on watch will 
continue the countdown up until the T-minus five min point. At this 
time, the aerial-based PSO confirms that all animals are outside the 
safety zone and that all holds have expired prior to clearing the drill 
barge for the T-minus five min notice. A fish scare charge will be 
fired at T-minus five min and T-minus one min to minimize effects of 
the blast on fish that may be in the same area of the blast array by 
scaring them from the blast area.
    An actual delay in blasting only occurs when a marine mammal is 
located within the exclusion zone at the point where the blast 
countdown reaches the T-minus five min. At that time, if an animal is 
in or near the safety zone, the countdown is put on hold until the zone 
is completely clear of marine mammals and all 30 min sighting holds 
have expired. Animal movements into the safety zone prior to that point 
are monitored closely, but do not necessarily stop the countdown. The 
exception to this would be stationary animals that do not appear to be 
moving out of the area or animals that begin moving into the safety 
zone late in the countdown. For these cases, holds on the T-minus 15 
min may be called for to keep the shipping channel open and minimize 
the impact on the Port of Miami operations.

Proposed 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 implanting 
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.
    The ACOE will be conducting a study on fish kill associated with 
confined underwater blasting that will provide information on the 
effects of confined underwater blasting on prey species for dolphins in 
the proposed project area. This study will determine the maximum 
distance from the blast array, based on charge weight, that fish will 
not be killed, or injured (the ``lethal dose of zero'' distance) by 
confined underwater blasting. Similar studies have been completed for 
open water (unconfined) blasts as cited by Hempen and Keevin (1995), 
Keevin et al. (1995a, 1995b, and 1997), and Keevin (1998), but no such 
studies have been conducted for confined underwater blasting. This data 
will be useful for future confined blasting projects where pisciverous 
marine mammals are found, since it will allow resource managers to 
assess the impacts of the blasting activities on marine mammal prey, 
where species composition and density data have been collected for that 
project.
    Additionally, ACOE will provide sighting data for each blast to 
researchers at NMFS Southeast Fisheries Science Center's marine mammal 
program and any other researchers working on dolphins in the project 
area to add to their database of animal usage of the proposed project 
area. The ACOE will rely upon the same monitoring protocol developed 
for the Port of Miami project in 2005 (Barkaszi, 2005) and published in 
Jordan et al. (2007).
    The ACOE plan to coordinate monitoring with the appropriate Federal 
and state resource agencies, and will provide copies of all relevant 
monitoring reports prepared by their contractors. After completion of 
all detonation and dredging events, the ACOE would submit a summary 
report to regulatory agencies.
    Within 30 days after completion of all proposed blasting events, 
the lead PSO shall submit a report to the ACOE, who will provide it to 
NMFS. The report will contain the PSO's logs (including names and 
positions during the blasting events), provide a description of the 
events, environmental conditions, number and location of animals 
sighted, the behavioral observations of the marine mammals, and what 
actions were taken when animals were sighted in the action area of the 
proposed

[[Page 71531]]

project. Any problems associated with the even and suggestions for 
improvements shall also be documented in the report. A draft final 
report must be submitted to NMFS within 90 days after the conclusion of 
the proposed blasting activities. 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 detonations as well as 
pre- and post-blasting monitoring observations. 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 IHA, 
such as an injury, serious injury or mortality, ACOE will immediately 
cease the specified activities and immediately report the incident to 
the Chief of the Permits and Conservation, Office of Protected 
Resources, NMFS at (301) 427-8401 and/or by email to 
[email protected] and [email protected], and the NMFS 
Southeast Region Marine Mammal Stranding Network at (877) 433-8299 
([email protected] and [email protected]) (Florida Marine Mammal 
Stranding Hotline at (888) 404-3922). The report must include the 
following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Description of the incident;
     Status of all noise-generating 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 all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with ACOE to 
determine what is necessary to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. ACOE may not resume their 
activities until notified by NMFS via letter or email, or telephone.
    In the event that ACOE 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), 
ACOE will immediately report the incident to the Chief of the Permits 
and Conservation Division, Office of Protected Resources, NMFS, at 
(301) 427-8401, and/or by email to [email protected] and 
[email protected], and the NMFS Southeast Region Marine Mammal 
Stranding Network (877) 433-8299) and/or by email to the Southeast 
Regional Stranding Coordinator ([email protected]) and Southeast 
Regional Stranding Program Administrator ([email protected]). The 
report must include the same information identified in the paragraph 
above. Activities may continue while NMFS reviews the circumstances of 
the incident. NMFS will work with ACOE to determine whether 
modifications in the activities are appropriate.
    In the event that ACOE 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 in the IHA (e.g., 
previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), ACOE will report the incident to 
the Chief of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, at (301) 427-8401, and/or by email to 
[email protected] and [email protected], and the NMFS 
Southeast Region Marine Mammal Stranding Network (877) 433-8299), and/
or by email to the Southeast Regional Stranding Coordinator 
([email protected]) and Southeast Regional Stranding Program 
Administrator ([email protected]), within 24 hours of discovery. 
ACOE will provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS and the Marine 
Mammal Stranding Network.

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].

    The ACOE is requesting the take of Atlantic bottlenose dolphins, by 
Level B harassment only, incidental to proposed blasting activities at 
Miami Harbor. The ACOE notes that multiple IHAs (up to three) will 
likely be needed and requested for the proposed project due to the 
duration of the planned blasting activities. See Table 2 (above) for 
NMFS's threshold criteria and metrics utilized for impact analyses from 
the use of explosives.

Biscayne Bay Stock

    The Biscayne Bay stock of Atlantic bottlenose dolphins is bounded 
by Haulover Inlet to the north and Card Sound Bridge to the south. 
Biscayne Bay is 428 square mi (mi\2\) (1,108.5 square km [km\2\]) in 
area. The Port of Miami channel, within the boundaries of Biscayne Bay, 
is approximately 7,200 ft (2,194.6 m) long by 500 ft (152.4 m) wide, 
with the 3,425 ft (1,044 m) long by 1,400 ft (426.7 m) wide Dodge-
Lummus Island turning basin (total area 0.3 mi\2\ [0.8 km\2\]) at the 
western terminus of Fisherman's Channel. The Port of Miami's channels 
consist of approximately 0.1% of the entire area of Biscayne Bay. To 
determine the maximum area of Biscayne Bay in which bottlenose dolphins 
may experience pressure levels greater than or equal to the 23 psi 
threshold for explosives less than 2,000 lb (907.2 kg), which has the 
potential to result in Level B harassment due to temporary threshold 
shift (TTS) and associated behavioral disruption, the ACOE may utilize 
a maximum charge weight of 450 lb (204.1 kg) with a calculated danger 
zone of 1,995 ft (608.1 m). Using this radius, the total area of this 
zone is approximately 0.1% of Biscayne Bay (12,503,617 ft\2\ [1,161,624 
m\2\]).
    For an open-water, unconfined blast, the pressure edge of the 
danger zone is expected to be 23 psi. For a fully confined blast, the 
pressure at the edge of the danger zone is expected to be 6 psi. 
Utilizing the pressure data collected the Miami Harbor Phase II project 
in 2005, for a maximum charge weight of 450 lbs in a fully confined 
blast, the pressure is expected to be 22 psi approximately 700 ft 
(213.4 m) from the blast, which is below the threshold for Level B 
harassment (i.e., 23 psi criteria for explosives less than 2,000 lb). 
However to ensure the protection of marine mammals, and in case of an 
incident where a detonation is not fully confined, the ACOE assumes 
that any animal within the boundaries of the

[[Page 71532]]

danger zone would be taken by Level B harassment.
    Litz (2007) identified 69 individuals of the Biscayne Bay stock 
that she classified as the ``northern dolphins'' meaning animals with a 
mean sighting history from 1994 to 2004 north of 25.61[deg] North. The 
photo-ID study that Litz's data is based on encompassed an area of 
approximately 200 mi\2\ (518 km\2\), approximately 50% of Biscayne Bay. 
The estimated maximum population of animals that may be in the proposed 
project area is equal to the total number of uniquely identified 
animals for the entire photo-ID study of Biscayne Bay is 229 
individuals (Waring et al., 2010). The best population estimate for 
Biscayne Bay is 157 individuals, which is based on SEFSC's most 
consistent survey effort conducted during the 2003 to 2007 photo-ID 
survey seasons (Waring et al., 2010).
    Table 4 (below) presents the estimated incidental take, by Level B 
harassment, for varying charge weight delays likely to be used during 
the proposed blasting activities and the estimated impacts based on the 
population estimates used in this analysis. In all cases, less than one 
bottlenose dolphin is expected to be taken incidental to each blasting 
event (0.049 minimum to 0.162 maximum). This assumes that the 
distribution of bottlenose dolphins is equal throughout all of Biscayne 
Bay.

  Table 4--The Estimated Incidental Take of Bottlenose Dolphins From the Biscayne Bay Stock, per Each Blasting
                     Event, Based on the Maximum Charge Weight/Delay and Population Density
----------------------------------------------------------------------------------------------------------------
                                                                  Estimated take                  Estimated take
                                                                     based on     Estimated take     based on
               Maximum (lbs/delay)                  Danger zone       minimum     based on  best      maximum
                                                       (ft)         population      population      population
                                                                     estimate        estimate        estimate
----------------------------------------------------------------------------------------------------------------
450.............................................           1,995           0.049           0.111           0.162
200.............................................           1,525           0.042           0.096           0.140
119.............................................           1,280           0.030           0.038           0.099
50..............................................             960           0.017           0.038           0.056
17..............................................             670           0.008           0.019           0.027
----------------------------------------------------------------------------------------------------------------

    The ACOE accessed the NMFS SEFSC photo-ID survey data from 1990 to 
2004 in Biscayne Bay via the OBIS-Seamap database (http://seamap.env.duke.edu/) and downloaded the Google Earth overlay of the 
data. Figure 12 of the ACOE's IHA application shows the general area of 
the Port of Miami and hot spots of bottlenose dolphin sightings both 
north and south of Miami Harbor. The data were used to see if sightings 
across all parts of the Biscayne Bay were equal. This sighting 
frequency data was not used to calculate the potential take numbers of 
marine mammals incidental to the proposed blasting activities.
    Reviewing the data from the Miami Harbor Phase II project in 2005, 
the ACOE noted that for the 40 detonations, 28% of all animals sighted 
within the proposed action area (Fisherman's Channel) were bottlenose 
dolphins (the other animals sighted were manatees and sea turtles). 
Bottlenose dolphins were sighted inside the exclusion zone 12 times 
with a total of 30 individuals, with an average of 2.5 animals per 
sighting out of the total 58 bottlenose dolphins recorded during the 
project; therefore, groups of dolphins entered the exclusion zone 
multiple times. Also, dolphins entered the exclusion zone during 30% of 
the blasting events. Not all of the incidents where dolphins entered 
the exclusion zone resulted in a project delay, it is dependent upon 
when during the countdown the animals cross the line demarcating the 
exclusion zone, and how long they stay in the exclusion zone.
    During the Miami Harbor Phase II project in 2005, bottlenose 
dolphins in the exclusion zone triggered delays on four occasions 
during the 13 blasting events (31%). If the maximum 313 planned 
detonations for the duration of the one year IHA have an equal 
percentage of delays as the 2005 project (assuming construction starts 
in June with blasting June, 2012 to June, 2013 timeframe, with no 
blasting on Sundays), 94 of the detonations would be delayed for some 
period of time due to the presence of protected species and 29 of those 
delays would specifically be for bottlenose dolphins.
    As a worst case, using the area of the danger zone, and recognizing 
that the Port of Miami is within the boundaries of the northern area 
described in Litz (2007), and that the danger zone of any blasting 
event using equal to or less than 450 lbs/delay will be approximately 
0.1% of Biscayne Bay, the ACOE assumes that because animals are not 
evenly distributed throughout Biscayne Bay, that they travel as single 
individuals or in groups (as documented in the OBIS-Seamap data and the 
monitoring data from the Miami Harbor Phase II project in 2005), and 
that without any monitoring and mitigation measures to minimize 
potential impacts, up to three bottlenose dolphins from the Biscayne 
Bay stock may be taken, by Level B harassment, incidental to each 
blasting event.
    Assuming that the delays will be spread equally across the proposed 
action area and using the calculation of 29 delays and that three 
bottlenose dolphins would be inside the danger zone, 15 of the delayed 
blasting events would take place in Biscayne Bay since it compromises 
52% of the proposed action area. Three bottlenose dolphins times 15 
detonations is equal to 45 bottlenose dolphins may be exposed to an 
underwater sound and pressure over a 1-year period for an IHA 
incidental to the proposed blasting activities at the Port of Miami.

Western North Atlantic Central Florida Coastal Stock

    The Western North Atlantic Central Florida Coastal stock of 
bottlenose dolphins is present in the coastal Atlantic waters shallower 
than 65.6 ft (20 m) in depth between latitude 29.4[deg] North to the 
western end of Vaca Key (approximately 29.69[deg] North to 81.11[deg] 
West) where the stock boundary for the Florida Key stock begins, with 
an area of 3,007 mi\2\ (7,789 km\2\). The outer entrance channel of the 
Port of Miami is approximately 15,500 ft long (4,724.4 m) by 500 ft 
wide, which is approximately 0.28 mi\2\ (0.73 km\2\). The Port of 
Miami's channels consist of approximately 0.009% of the stocks 
boundaries.
    The same calculations for assessing the potential impacts to 
bottlenose dolphins from the proposed blasting activities that were 
used for the Biscayne Bay stock were also applied to this stock. To 
determine the maximum area of the coastal Atlantic in which bottlenose 
dolphins may experience pressure levels greater than or equal to the 23 
psi threshold for explosives less than 2,000 lb (907.2 kg), which has 
the potential to result in Level B harassment due to TTS and associated 
behavioral disruption, the ACOE may utilize a

[[Page 71533]]

maximum charge weight of 450 lb (204.1 kg) with a calculated danger 
zone of 1,995 ft (608.1 m). Using this radius, the total area of this 
zone is approximately 0.015% of coastal Atlantic where this stock is 
expected to occur.
    For an open-water, unconfined blast, the pressure edge of the 
danger zone is expected to be 23 psi. For a fully confined blast, the 
pressure at the edge of the danger zone is expected to be 6 psi. 
Utilizing the pressure data collected the Miami Harbor Phase II project 
in 2005, for a maximum charge weight of 450 lbs in a fully confined 
blast, the pressure is expected to be 22 psi approximately 700 ft 
(213.4 m) from the blast, which is below the threshold for Level B 
harassment (i.e., 23 psi criteria for explosives less than 2,000 lb). 
However to ensure the protection of marine mammals, and in case of an 
incident where a detonation is not fully confined, the ACOE assumes 
that any animal within the boundaries of the danger zone would be taken 
by Level B harassment.
    Waring et al. (2010) estimates the minimum population for the 
Western North Atlantic Central Florida stock to be 5,094 animals, and 
estimates the best population to be 6,318 animals.
    Table 5 (below) presents the estimated incidental take, by Level B 
harassment, for varying charge weight delays likely to be used during 
the proposed blasting activities and the estimated impacts based on the 
population estimates used in this analysis. In all cases, less than one 
bottlenose dolphin is expected to be taken incidental to each blasting 
event (0.102 minimum to 0.948 maximum). This assumes that the 
distribution of bottlenose dolphins is equal throughout all of the 
stock's range.

 Table 5--The Estimated Incidental Take of Bottlenose Dolphins From the
 Western North Atlantic Central Florida Coastal Stock, per Each Blasting
 Event, Based on the Maximum Charge Weight/Delay and Population Density
------------------------------------------------------------------------
                                          Estimated take
                                             based on     Estimated take
                            Danger zone       minimum     based on  best
   Maximum (lbs/delay)         (ft)         population      population
                                             estimate        estimate
                                              (5,094)         (6,318)
------------------------------------------------------------------------
450.....................           1,995           0.764           0.948
200.....................           1,525        0.458042           0.569
119.....................           1,280           0.360           0.379
50......................             960           0.153           0.190
17......................             670           0.102           0.126
------------------------------------------------------------------------

    Other than the aerial surveys conducted by NMFS used to develop the 
stock assessment report, the ACOE has not been able to locate any 
additional photo-ID or habitat usage analysis. As a result, the ACOE is 
unable to determine if animals are evenly distributed throughout the 
stock's range, particularly in the southernmost portion of the stock's 
range where the proposed action area is located.
    To be conservative, the ACOE will use the same assumptions for the 
Western North Atlantic Central Florida Coastal stock as was used for 
the Biscayne Bay stock. Reviewing the data from the Miami Harbor Phase 
II project in 2005, the ACOE noted that for the 40 detonations, 28% of 
all animals sighted within the proposed action area (Fisherman's 
Channel) were bottlenose dolphins (the other animals sighted were 
manatees and sea turtles). Bottlenose dolphins were sighted inside the 
exclusion zone 12 times with a total of 30 individuals, with an average 
of 2.5 animals per sighting out of the total 58 bottlenose dolphins 
recorded during the project; therefore, groups of dolphins entered the 
exclusion zone multiple times. Also, dolphins entered the exclusion 
zone during 30% of the blasting events. Not all of the incidents where 
dolphins entered the exclusion zone resulted in a project delay, it is 
dependent upon when during the countdown the animals cross the line 
demarcating the exclusion zone, and how long they stay in the exclusion 
zone.
    During the Miami Harbor Phase II project in 2005, bottlenose 
dolphins in the exclusion zone triggered delays on four occasions 
during the 13 blasting events (31%). If the maximum 313 planned 
detonations for the duration of the one year IHA have an equal 
percentage of delays as the 2005 project (assuming construction starts 
in June with blasting June, 2012 to June, 2013 timeframe, with no 
blasting on Sundays), 94 of the detonations would be delayed for some 
period of time due to the presence of protected species and 29 of those 
delays would specifically be for bottlenose dolphins.
    As a worst case, using the area of the danger zone, and that the 
danger zone of any blasting event using equal to or less than 450 lbs/
delay will be approximately 0.009% of the stock's range. The ACOE 
assumes that because animals are not evenly distributed throughout the 
stock's range, that they travel as single individuals or in groups (as 
documented in the monitoring data from the Miami Harbor Phase II 
project in 2005), and that without any monitoring and mitigation 
measures to minimize potential impacts, up to three bottlenose dolphins 
from the Western North Atlantic Central Florida Coastal stock may be 
taken, by Level B harassment, incidental to each blasting event.
    Assuming that delays will be spread equally across the proposed 
action area and using the calculation of 29 delays and that three 
bottlenose dolphins would be inside the danger zone, 14 of the delayed 
blasting events would take place in Biscayne Bay since it compromises 
48% of the proposed action area. Three bottlenose dolphins times 14 
detonations is equal to 42 bottlenose dolphins may be exposed to 
underwater sound and pressure over a one year period for an IHA 
incidental to the proposed blasting activities at the Port of Miami.

Summary of Requested Estimated Take

    Without the implementation of the proposed monitoring and 
mitigation measures, the ACOE has calculated up to 87 bottlenose 
dolphins (45 from the Biscayne Bay stock, 42 of the Western North 
Atlantic Central Florida stock) may be potentially taken, by Level B 
harassment, incidental to the proposed blasting operations over the 
course of the one year IHA. Due to the protective measures of confined 
blasts, the implementation of the proposed monitoring and mitigation 
measures (i.e., danger, exclusion, safety, and watch zones, use of the 
confined blasting techniques, as well as PSOs),

[[Page 71534]]

the ACOE is requesting the take, by Level B harassment only, of a total 
of 22 bottlenose dolphins (12 bottlenose dolphins from the Biscayne Bay 
stock and 10 bottlenose dolphins from the Western North Atlantic 
Central Florida Coastal stock).

Encouraging and Coordination Research

    The ACOE will coordinate monitoring with the appropriate Federal 
and state resource agencies, including NMFS Office of Protected 
Resources and NMFS Southeast Regional Office's (SERO) Protected 
Resources Division, and will provide copies of any monitoring reports 
prepared by the contractors.

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 evaluated factors such as:
    (1) The number of anticipated injuries, serious injuries, or 
mortalities;
    (2) The number, nature, and 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 
the 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).
    Tables 1, 4, and 5 in this document discloses the habitat, regional 
abundance, conservation status, density, and the number of individuals 
potentially exposed to sounds and pressure levels considered the 
threshold for Level B harassment. Also, there are no known important 
reproductive or feeding areas in the proposed action area.
    For reasons stated previously in this document, the specified 
activities associated with the ACOE's blasting operations are not 
likely to cause PTS, or other non-auditory injury, serious injury, or 
death to affected marine mammals. As a result, no take by injury, 
serious injury, or death is anticipated or authorized, and the 
potential for temporary or permanent hearing impairment is very low and 
will be minimized through the incorporation of the proposed monitoring 
and mitigation measures.
    No injuries or mortalities are anticipated to occur as a result of 
the ACOE's blasting operations, and none are proposed to be authorized 
by NMFS. Approximately 22 Atlantic bottlenose dolphins (12 from the 
Biscayne Bay stock, 10 from the Western North Atlantic Central Florida 
Coastal stock) are anticipated to incur short-term, minor, hearing 
impairment (TTS) and associated behavioral disruption due to the 
instantaneous duration of the blasting events. While some other species 
of marine mammals may occur in the proposed project area, only Atlantic 
bottlenose dolphins are anticipated to be potentially impacted by the 
ACOE's proposed blasting operations.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (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). Consequently, a behavioral 
response lasting less than one day and not recurring on subsequent days 
is not considered particularly severe unless it could directly affect 
reproduction or survival (Southall et al., 2007). The ACOE's proposed 
action at Miami Harbor includes up to two planned blasting events per 
day, which are very short in duration, and may potentially result in 
momentary reactions by marine mammals in the proposed action area.
    Atlantic bottlenose dolphins are the only species of marine mammals 
under NMFS jurisdiction that are likely to occur in the action area, 
they are not listed as threatened or endangered under the ESA, however 
both stocks are listed as depleted and considered strategic under the 
MMPA. To protect these marine mammals (and other protected species in 
the proposed action area), the ACOE must delay operations if animals 
enter designated zones. Due to the nature, degree, and context of the 
Level B harassment anticipated and described in this notice (see 
``Potential Effects on Marine Mammals'' section above), the activity is 
not expected to impact rates of recruitment or survival for any 
affected species or stock.
    As mentioned previously, NMFS estimates that one 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., 22 Atlantic bottlenose dolphins, 12 
from the Biscayne Bay stock [17% of the estimated minimum population, 
7.6% of the estimated best population, and 5.2% of the estimated 
maximum population], and 10 from the Western North Atlantic Central 
Florida Coastal stock [0.19% of the estimated minimum population and 
0.15% of the estimated best population], less than 17 percent of any of 
the estimated population 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 had determined, provided that the aforementioned monitoring 
and mitigation measures are implemented, that the impact of conducting 
the proposed blasting activities in the Port of Miami from June, 2012 
through May, 2012, may result, at worst in a temporary modification in 
behavior and/or low level physiological effects (Level B harassment) of 
small numbers of Atlantic bottlenose dolphins.
    While behavioral modifications, including temporarily vacating the 
area immediately after blasting operations, may be made by these 
species to avoid the resultant underwater acoustic disturbance, the 
availability of alternate areas within these area and the instantaneous 
and sporadic duration of the blasting 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 has preliminarily determined that the ACOE`s planned 
blasting activities will result in the incidental take of small numbers 
of marine mammals, by Level B harassment only, and that the total 
taking from the blasting activities 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.

[[Page 71535]]

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 is no subsistence hunting for marine mammals in the action area 
(waters off of the coast of southeast Florida) that implicates MMPA 
section 101(a)(5)(D).

Endangered Species Act

    Under section 7 of the ESA, the ACOE requested formal consultation 
with the NMFS SERO, on the proposed project to improve the Port of 
Miami on September 5, 2002, and reinitiated consultation on January 6, 
2011. NMFS SERO determined that the proposed action is likely to 
adversely affect one ESA-listed species and prepared a Biological 
Opinion (BiOp) issued on September 8, 2011, that analyzes the project's 
effects on staghorn coral (Acropora cervicornis). It is NMFS's 
biological opinion that the action, as proposed, is likely to adversely 
affect staghorn coral, but is not likely to jeopardize its continued 
existence or adversely modify its designated critical habitat. Based 
upon NMFS SERO's updated analysis, NMFS no longer expects the proposed 
project is likely to adversely affect Johnson's seagrass (Halophila 
johnsonii) or its designated critical habitat. NMFS SERO has determined 
that the ESA-listed marine mammals (Blue, fin, sei, humpback, North 
Atlantic right, and sperm whales), smalltooth sawfish (Pristis 
pectinata), and leatherback sea turtles (Dermochelys coriacea) are not 
likely to be adversely affected by the proposed action. Previous NMFS 
biological opinions have determined that hopper dredges may affect 
hawksbill (Eretmochelys imbricata), Kemp's ridley (Lepidochelys 
kempii), green (Chelonia mydas), and loggerhead (Caretta caretta) sea 
turtles through entrainment by the draghead. Any incidental take of 
loggerhead, green, Kemp's ridley, or hawksbill sea turtles due to 
hopper dredging has been previously authorized in NMFS's 1997 South 
Atlantic Regional BiOp on hopper dredging along the South Atlantic 
coast. The ACOE is currently in re-initiation of consultation with NMFS 
on the South Atlantic Regional BiOp. When a new BiOp is issued by NMFS, 
the Terms and Conditions of that South Atlantic Regional BiOp will be 
incorporated into the proposed project.

National Environmental Policy Act (NEPA)

    The ACOE has prepared a ``Final Environmental Impact Statement on 
the Navigation Study for Miami Harbor, Miami-Dade County, Florida,'' 
and a Record of Decision for the proposed project was signed on May 22, 
2006; however, this document does not analyze NMFS's action, the 
issuance of the IHA for the ACOE's proposed activity. NMFS, after 
independently reviewing and evaluating the document for sufficiency and 
compliance with the CEQ regulations and NOAA Administrative Order (NAO) 
216-6 Sec.  5.09(d), has begun conducting a separate NEPA analysis, 
which analyzes the project's purpose and need, alternatives, affected 
environment, and environmental effects for the proposed action. NMFS 
will decide whether or not to sign a Finding of No Significant Impact 
(FONSI) prior to making a determination on the issuance of the IHA.

Proposed Authorization

    NMFS proposes to issue an IHA to the ACOE for conducting blasting 
operations at the Port of Miami, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated. 
The duration of the IHA would not exceed one year from the date of its 
issuance.

Information Solicited

    NMFS requests interested persons to submit comments and information 
concerning this proposed project and NMFS's preliminary determination 
of issuing an IHA (see ADDRESSES). Concurrent with the publication of 
this notice in the Federal Register, NMFS is forwarding copies of this 
application to the Marine Mammal Commission and its Committee of 
Scientific Advisors.

    Dated: November 14, 2011.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2011-29886 Filed 11-17-11; 8:45 am]
BILLING CODE 3510-22-P