[Federal Register Volume 78, Number 86 (Friday, May 3, 2013)]
[Notices]
[Pages 25958-25970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10529]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XC498


Takes of Marine Mammals Incidental to Specified Activities; 
Demolition and Construction Activities of the Children's Pool Lifeguard 
Station at La Jolla, California

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 City of San Diego 
for an Incidental Harassment Authorization (IHA) to take small numbers 
of marine mammals, by Level B harassment, incidental to demolition and 
construction activities of the Children's Pool Lifeguard Station in La 
Jolla, California. 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 the City of San Diego to 
incidentally harass, by Level B harassment only, three species of 
marine mammals during the specified activities.

DATES: Comments and information must be received no later than June 3, 
2013.

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]. Please include 0648-XC498 in 
the subject line. 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 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 address specified 
above, telephoning the contact listed below (see FOR FURTHER 
INFORMATION CONTACT), or visiting the Internet at:http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this 
notice, including the IHA application, 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

    Sections 101(a)(5)(D) of the MMPA, as amended (16 U.S.C. 
1371(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), 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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for 
NMFS's review of an application followed by a 30-day public notice and 
comment period on any proposed authorizations for the incidental 
harassment of small numbers of marine mammals. Within 45 days of the 
close of the public comment period, NMFS must either issue or deny the 
authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment]. 16 U.S.C. 1362(18).

Summary of Request

    On December 3, 2012, NMFS received an application from the City of 
San Diego, Engineering and Capital Projects Department, requesting an 
IHA. A revised IHA application was submitted on April 1, 2013. The 
requested IHA would authorize the take, by Level B (behavioral) 
harassment, of small numbers of Pacific harbor seals (Phoca vitulina 
richardii), California sea lions (Zalophus californianus), and northern 
elephant seals (Mirounga angustirostris) incidental to demolition and 
construction activities of the Children's Pool Lifeguard Station at La 
Jolla, California. The demolition and construction operations are 
proposed to take place during June to December, 2013 in La Jolla, 
California. Additional information on the demolition and construction 
activities at the Children's Pool Lifeguard Station is contained in

[[Page 25959]]

the application, which is available upon request (see ADDRESSES).

Description of the Proposed Specified Activity

    The Children's Pool was created in 1932 by building a breakwater 
wall which created a protected pool for swimming. This pool has 
partially filled with sand, but still has open water for swimming, as 
well as a beach for sunbathing and walking. The Children's Pool and 
nearby shore areas are used by swimmers, sunbathers, SCUBA divers and 
snorkelers, shore/surf fishermen, school classrooms, tide pool 
explorers, kayakers, surfers, boogie and skim boarders, seal, bird and 
nature waters as well as other activities by the general public. Over 
the last three years (2010 through 2012), an average of 1,556,184 
people have visited the Children's Pool and lifeguards have taken an 
average of 8,147 preventive actions and 86 water rescues annually 
(CASA, 2010; 2011; 2012). The existing lifeguard facility was built in 
1967, it is old, deteriorating from saltwater intrusion, and no longer 
serves neither the needs of the lifeguard staff nor the beach-going 
public. The structure was condemned on February 22, 2008 due to its 
deteriorated conditions and the lack of structural integrity; 
therefore, it can no longer be used in its current state. Since the 
existing building is no longer viable, a temporary lifeguard tower was 
moved in, but because of basic year-round working condition needs for 
the lifeguards and the demand for lifeguard services, a new station is 
required. The proposed project includes the demolition of the existing 
lifeguard station and construction of a new, three-story, lifeguard 
station on the same site. The new facility will have an observation 
tower, first aid room, male/female locker rooms, and a second 
observation/ready room area, an accessible ramp to the new proposed 
unisex public restrooms on the lower floor, a public viewing area, and 
a plaza in front of the lifeguard station. The new lifeguard station 
facilities will provide a 270[deg] view of beaches, bluffs, and reefs 
for continued service to the public onshore as well as in the water.
    Sound levels during all phases of the project will not exceed 110 
dB re 20 [mu]Pa at five feet from the sound sources. The 110 dB 
estimate is based on equipment manufacturers estimates obtained by the 
construction contractor. The City of San Diego utilized the published 
manufacturers data based on the proposed equipment (i.e., a 980 Case 
backhoe, dump truck, air compressor, electric screw guns, jackhammer, 
concrete saw, and chop saws) to be utilized on the project site. 
Operation of the equipment is the primary activity within the 
demolition and construction of activities that is likely to affect 
marine mammals by potentially exposing them to in-air (i.e., airborne 
or sub-aerial) noise. It is difficult to predict what activities might 
cause noticeable behavioral reactions with Pacific harbor seals at this 
site. Children's Pool is a highly disturbed hauling-out site and seals 
at this location do not respond to stimuli as observed with other 
harbor seals in other areas (Hanan & Associates, 2004; 2011) (see 
http://www.youtube.comwatch?v=4IRUYVTULsg). During the working day, the 
City of San Diego estimates there will be sound source levels above 90 
dB re 20 [mu]Pa during 106 days, including 27 days of 100 to 110 dB re 
20 [mu]Pa at the demolition and construction site. The contractor used 
published or manufacturer's measurements to estimate sound levels. On 
average, pinnipeds will be about 30.5 meters (m) (100 feet [ft]) or 
more from the construction site with a potential minimum of about 15.2 
m (50 ft) and a peak of about 83 dB re 20 [mu]Pa at the mean hauling-
out distance (30.5 m). The City of San Diego used the formula and 
online calculator on the Web site: http://sengpielaudio.com/calculator-distance.htm and measured distances from the sound source to determine 
the area of potential impacts from in-air sound. No studies of ambient 
sound levels have been conducted at the Children's Pool, the City of 
San Diego intends to measure in-air background noise levels in the days 
immediately prior to construction.
    The existing lifeguard station is located on a bluff above 
Children's Pool (32[deg]50'50.02'' North, 117[deg]16'42.8'' West) 
nearby reef and beach areas (see detailed maps and photographs on pages 
30 to 31 of the ``Mitigated Negative Declaration'' in the IHA 
application). The building has deteriorated significantly and must be 
removed. A backhoe will be used for demolishing the existing structure, 
and materials will be loaded into dump trucks to be hauled offsite. 
Material will be hauled to a local landfill where it will be separated 
into recycled content and waste. In its place, a new lifeguard station 
is scheduled to be constructed within and adjacent to the existing 
facility. The new three-story, building will contain beach access level 
public restrooms and showers, lifeguard lockers, and sewage pump room; 
second level containing two work stations, ready/observation room, 
kitchenette, restroom, and first aid station; and third ``observation'' 
level will include a single occupancy observation space, radio storage 
closet, and exterior catwalk. Interior stairs will link the floors. The 
existing below grade retaining walls will remain in place and new 
retaining walls will be constructed for a ramp from street level to the 
lower level for emergency vehicle beach access and pedestrian access to 
the lower level restrooms and showers. A 5.6 m (18. 5 ft) wall would be 
located along the north end of the lower level. The walls would be 
designed for a minimum design life of 50 years and would not be 
undermined from ongoing coastal erosion. The walls would not be readily 
viewed from Coast Boulevard, the public sidewalks or the surrounding 
community.
    Lower level improvements include new beach access restrooms and 
showers, lifeguard lockers, and a sewage pump room. The plaza level 
plan includes two work stations, a ready/observation room, kitchenette, 
restroom and first aid station. The observation level includes a single 
occupancy observation space, radio storage closet, and exterior 
catwalk. The existing plaza would be reconfigured to provide a 3.1 m 
(10 ft) wide ramp for emergency vehicles to the beach and for 
pedestrians to the lower level accessible restrooms and showers. 
Enhanced paving, seating and viewing space, drinking fountains, adapted 
landscaping and water efficient irrigation is also included. No 
material is expected to enter or be washed into the marine environment 
that may affect water quality, as the City of San Diego has developed 
the U.S. Environmental Protection Agency's National Pollutant Discharge 
Elimination System and the Stormwater Pollution Prevention Plan, 
required for the demolition and construction activities.
    Demolition and construction of the new lifeguard station is 
estimated to take approximately 7 months (148 actual construction days 
of the 214 total days) and be completed by December 23, 2013. 
Demolition and construction activities will occur Monday through Friday 
(no work will occur on holidays) during daylight hours only (i.e., 8:30 
a.m. to 3:30 p.m.), as stipulated in the ``Mitigated Negative 
Declaration'' and local ordinances. Demolition and construction 
activities are divided into phases:
    (1.) Mobilization and temporary facilities;
    (2.) Demolition and site clearing;
    (3.) Site preparation and utilities;
    (4.) Building foundation;
    (5.) Building shell;
    (6.) Building exterior;
    (7.) Building interior;

[[Page 25960]]

    (8.) Site improvements; and
    (9.) Final inspection and demobilization.
    Detail summary (phases overlap in time):
    (1.) Mobilization and temporary facilities:
    Install--temporary perimeter fencing, temporary utilities and 
foundation, temporary life guard tower, temporary office trailer, 
temporary sanitary facilities, and temporary sound wall/visual barrier.
    Equipment--truck, backhoe, trailer, small auger, hand/power tools, 
and concrete truck.
    Timeframe--June 3 to June 18, 2013.
    (2.) Demolition and site clearing:
    Dismantle and remove existing station, remove hardscape and 
landscape, trucks expected to haul-off less than 5 loads of debris via 
Coast Boulevard.
    Equipment--excavator, hydraulic ram, jackhammer, trucks, and hand/
power tools.
    Timeframe--June 19 to July 5, 2013.
    (3.) Site preparation and utilities:
    Rough grade building site and modify underground utilities.
    Equipment--loader, backhoe, and truck.
    Timeframe--July 8 to July 30, 2013.
    (4.) Building foundation:
    Dig/shore foundation, pour concrete, waterproofing, and remove 
shoring.
    Equipment--backhoe, concrete pump/truck, hand/power tools, small 
drill rig, and crane.
    Timeframe--July 23 to August 21, 2013.
    (5.) Building shell:
    Pre-cast concrete panel walls, panel walls, rough carpentry and 
roof framing, wall board, cable railing, metal flashing, and roofing.
    Equipment--crane, truck, fork lift, hand/power tools.
    Timeframe--August 22 and October 9, 2013.
    (6.) Building exterior:
    Doors and windows, siding paint, light fixtures, and plumbing 
fixtures.
    Equipment--truck, hand/power tools, and chop saw.
    Timeframe--4 weeks.
    (7.) Building interiors:
    Walls, sewage lift station, rough and finish mechanical electrical 
plumbing structural (MEPS), wall board, door frames, doors and paint.
    Equipment--truck, hand/power tools, and chop saw.
    Timeframe--October 3 to November 22, 2013.
    (8.) Site improvements:
    Modify storm drain, concrete seat walls, curbs, and planters, fine 
grade, irrigation, hardscape, landscape, hand rails, plaques, and 
benches.
    Equipment--backhoe, truck, hand/power tools, concrete pump/truck, 
and fork lift.
    Timeframe--October 3 to November 22, 2013.
    (9.) Final inspection, demobilization:
    System testing, remove construction equipment, inspection, and 
corrections.
    Equipment--truck, and hand/power tools.
    Timeframe--October 18 to December 23, 2013.
    If the City of San Diego's demolition and construction activities 
are not completed in 2013, then they would submit another IHA 
application for 2014. Additional details regarding the proposed 
demolition and construction activities of the Children's Pool Lifeguard 
Station can be found in the City of San Diego's IHA application. The 
IHA application can also be found online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

Proposed Dates, Duration, and Specific Geographic Region

    The La Jolla Children's Pool Lifeguard Station is located at 827 
[frac12] Coast Boulevard, La Jolla, California 92037 (32[deg] 50' 
50.02'' North, 117[deg] 16'42.8'' West. Because the City of San Diego 
is already requiring a moratorium on all construction activities during 
harbor seal pupping and weaning (i.e., January 1st to May 30th; see 
page 5 of the Negative Declaration in the IHA application), work on 
this proposed project can only be performed between June 1st and 
December 31st of any year. The City of San Diego is planning to begin 
the project at the Children's Pool in La Jolla, California on June 1, 
2013, with site preparation (see page 30 to 31 of the Negative 
Declaration in the IHA application) followed by demolition of the 
existing station and construction of the new lifeguard station to be 
completed by December 23, 2013. The locations and distances (in ft) 
from the demolition/construction site to the Children's Pool haul-out 
area, breakwater ledge/rocks haul-out area, reef haul-out area, and 
Casa Beach haul-out area can be found in the City of San Diego's IHA 
application.

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

    Three species of pinnipeds are known to or could occur in the 
proposed Children's Pool action area and off the Pacific coastline (see 
Table 1 below). Pacific harbor seals, California sea lions, and 
northern elephant seals are the three species of marine mammals that 
occur and are likely to be found within the proposed activity area; 
thus, they are likely to be exposed to effects of the specified 
activities. NMFS and the City of San Diego do not expect incidental 
take of other marine mammal species. A variety of other marine mammals 
have on occasion been reported from the coastal waters of southern 
California. These include gray whales, killer whales, bottlenose 
dolphins, Steller sea lions, northern fur seals, and Guadalupe fur 
seals. However, none of these species have been reported to occur in 
the proposed action area. Table 1 below outlines the cetacean and 
pinnipeds species, their habitat, and conservation status in the 
nearshore area of the general region of the proposed project area.

   Table 1--The Habitat, Abundance, and Conservation Status of Marine Mammals Inhabiting the General Region of the Proposed Action Area in the Pacific
                                                       Ocean Off the Southern Coast of California
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                                                                 Best population
              Species                        Habitat         estimate (minimum) \1\         ESA \2\                MMPA \3\           Population trend
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Mysticetes:
    Gray whale (Eschrichtius         Coastal and shelf.....  19,126 (18,107).......  DL--Eastern Pacific    NC--Eastern Pacific    Increasing over past
     robustus).                                                                       stock.                 stock.                 several decades.
                                                             ......................  EN--Western Pacific    D--Western Pacific
                                                                                      stock.                 stock.
Odontocetes:
    Killer whale (Orcinus orca)....  Widely distributed....  354 (354)--West Coast   NL...................  NC...................  Increasing--West
                                                              Transient stock.                                                      Coast Transient
                                                                                                                                    stock.

[[Page 25961]]

 
                                                             ......................  EN--Southern resident  D--Southern Resident
                                                                                      population.            and AT1 Transient
                                                                                                             populations.
    Bottlenose dolphin (Tursiops     Offshore, inshore,      323 (290)--California   NL...................  NC...................  Stable.
     truncatus).                      coastal, estuaries.     Coastal stock.
    Long-beaked common dolphin       Inshore...............  107,016 (76,224)--      NL...................  NC...................  Increasing.
     (Delphinus capensis).                                    California stock.
Pinnipeds:
    Pacific harbor seal (Phoca       Coastal...............  30,196 (26,667)--       NL...................  NC...................  Increased in
     vitulina richardii).                                     California stock.                                                     California 1981 to
                                                                                                                                    2004.
    Northern elephant seal           Coastal, pelagic when   124,000 (74,913)--      NL...................  NC...................  Increasing through
     (Mirounga angustirostris).       not migrating.          California breeding                                                   2005, now stable.
                                                              stock.
    California sea lion (Zalophus    Coastal, shelf........  296,750 (153,337)--     NL...................  NC...................  Increasing.
     californianus).                                          U.S. stock.
    Steller sea lion (Eumetopias     Coastal, shelf........  72,223 (58,334)--       T--Eastern U.S. stock  D....................  Overall increasing,
     jubatus).                                                Eastern U.S. stock.                                                   decreasing in
                                                                                                                                    California.
                                                             ......................  EN--Western U.S.       .....................
                                                                                      stock.
    Northern fur seal (Callorhinus   Pelagic, offshore.....  9,968 (5,395)--San      NL...................  NC--San Miguel Island  Increasing.
     ursinus).                                                Miguel Island stock.                           stock.
    Guadalupe fur seal               Coastal, shelf........  7,408 (3,028)--Mexico   T....................  D....................  Increasing.
     (Arctocephalus townsendi).                               to California.
--------------------------------------------------------------------------------------------------------------------------------------------------------
NA = Not available or not assessed.
\1\ NMFS Marine Mammal Stock Assessment Reports
\2\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, DL = Delisted, and NL = Not listed.
\3\ U.S. Marine Mammal Protection Act: D = Depleted, S = Strategic, and NC = Not classified.e rocks and beaches at or near the Children's Pool in La
  Jolla, California, are almost exclusively Pacific harbor seal hauling-out sites. On rare occasions, one or two California sea lions or a single
  juvenile northern elephant seal, have been observed on the sand or rocks at or near the Children's Pool (i.e., breakwater ledge/rocks haul-out area,
  reef haul-out area, and Casa Beach haul-out area). These sites are not usual haul-out locations for California sea lions and/or northern elephant
  seals. The City of San Diego commissioned two studies of harbor seal abundance trends at the Children's Pool. Both studies reported rare appearances
  of California sea lions and northern elephant seals (Yochem and Steward, 1998; Hanan & Associates, 2004).

Pacific Harbor Seal

    Harbor seals are widely distributed in the North Atlantic and North 
Pacific. Two subspecies exist in the Pacific Ocean: P. v. stejnegeri in 
the western North Pacific near Japan, and P. v. richardii in the 
eastern North Pacific. The subspecies in the eastern North Pacific 
Ocean inhabits near-shore coastal and estuarine areas from Baja 
California, Mexico, to the Pribilof Islands in Alaska. These seals do 
not make extensive pelagic migrations, but do travel 300 to 500 km (162 
to 270 nautical miles [nmi]) on occasion to find food or suitable 
breeding areas (Herder, 1986; Harvey and Goley, 2011). Previous 
assessments of the status of harbor seals have recognized three stocks 
along the west coast of the continental U.S.: (1) California, (2) 
Oregon and Washington outer coast waters, and (3) inland waters of 
Washington. An unknown number of harbor seals also occur along the west 
coast of Baja California, at least as far south as Isla Asuncion, which 
is about 100 miles south of Punta Eugenia. Animals along Baja 
California are not considered to be a part of the California stock 
because it is not known if there is any demographically significant 
movement of harbor seals between California and Mexico and there is no 
international agreement for joint management of harbor seals. In 
California, approximately 400 to 600 harbor seal haul-out sites are 
distributed along the mainland and on offshore islands, including 
intertidal sandbars, rocky shores, and beaches (Hanan, 1996; Lowery et 
al., 2008). Harbor seals are one of the most common and frequently 
observed marine mammals along the coastal environment.
    Pacific harbor seals haul-out on nearby beaches and rocks (i.e., 
breakwater ledge/rocks haul-out area, reef haul-out area, and Casa 
Beach haul-out area) below the lifeguard tower at Children's Pool. It 
is one of the three known haul-out sites for this species in San Diego 
County. They haul-out, give birth to pups, nurse, and molt their pelage 
on the beach and often forage for food in nearby areas. Harbor seal 
numbers have increased since 1979 and seals are documented to give 
birth on these beaches during January through May (Hanan, 2004; 2011). 
Several studies have identified seal behavior and estimated seal 
numbers including patterns of daily and seasonal area use (Yochem and 
Stewart, 1998; Hanan & Associates, 2004, 2011; Linder, 2011). Males, 
females, and pups (in season) of all ages and stages of development are 
observed at the Children's Pool and adjacent areas.
    Harbor seals haul-out on the sand, rocks, and breakwater base at/
near the Children's Pool in numbers of 0 to 15 seals to a maximum of 
about 150 to 200 seals depending on the time of day, season, and 
weather conditions. These animals have been observed in this area 
moving to/from the Children's Pool, exchanging with the rocky reef 
directly west of and adjacent to the breakwater and with Seal Rock, 
which is about 150 m (492 ft) west of the Children's Pool. Harbor seals 
have also been reported on

[[Page 25962]]

the sandy beach just southwest of the Children's Pool. Because space is 
limited behind the breakwater at Children's Pool, it is unlikely that 
the number of seals would ever exceed 250 individuals (Linder, 2011). 
At low tide, additional space for hauling-out is available on the rocky 
reef areas outside the retaining wall and on beaches immediately 
southward. Haul-out times vary by time of year, from less than an hour 
to many hours. There have been no foraging studies at this site, but 
harbor seals have been observed in nearshore waters and kelp beds 
nearby, including La Jolla Cove.
    Radio-tagging and photographic studies have revealed that only a 
portion of seals utilizing a hauling-out site are present at any 
specific moment or day (Hanan, 1996, 2005; Gilbert et al., 2005; Harvey 
and Goley, 2011; and Linder, 2011). These radio-tagging studies 
indicate that harbor seals in Santa Barbara County haul-out about 70 to 
90% of the days annually (Hanan, 1996), the City of San Diego expects 
harbor seals to behave similarly at the Children's Pool. Tagged and 
branded harbor seals from other haul-out sites have been observed by 
Dr. Hanan at the Children's Pool. Harbor seals have been observed with 
red-stained heads and coats, which are typical of some harbor seals in 
San Francisco Bay, indicating that seals tagged at other locations and 
haul-out sites do visit the Children's Pool. A few seals have been 
tagged at the Children's Pool and there are no reports of these tagged 
animals at other sites (probably because of very low re-sighting 
efforts and a small sample size [10 individuals radio-tagged]), which 
may indicate a degree of site-fidelity (Yochem and Stewart, 1998). 
These studies further indicate that seals are constantly moving along 
the coast including to/from the offshore islands and that there may be 
as many as 600 harbor seals using Children's Pool during a year, but 
certainly not all at one time.
    The City of San Diego has fitted a polynomial curve to the number 
of expected harbor seals hauling-out at the Children's Pool by month 
(see Figure 1 of the IHA application and below) based on counts at the 
Children's Pool by Hanan & Associates (2004, 2011), Yochem and Stewart 
(1998), and the Children's Pool docents (Hanan & Associates, 2004). A 
three percent annual growth rate of the population was applied to 
Yochem and Stewart (1998) counts to normalize them to Hanan & 
Associates and docent counts in 2003 to 2004.
    A complete count of all harbor seals in California is impossible 
because some are always away from the haul-out sites. A complete pup 
count (as is done for other pinnipeds in California) is also not 
possible because harbor seals are precocial, with pups entering the 
water almost immediately after birth. Population size is estimated by 
counting the number of seals ashore during the peak haul-out period 
(May to July) and by multiplying this count by a correction factor 
equal to the inverse of the estimated fraction of seals on land. Based 
on the most recent harbor seal counts (2009) and including a revised 
correction factor, the estimated population of harbor seals in 
California is 30,196 individuals (NMFS, 2011), with an estimated 
minimum population of 26,667 for the California stock of harbor seals. 
Counts of harbor seals in California increased from 1981 to 2004. The 
harbor seal is not listed under the ESA and the California stock is not 
considered depleted or strategic under the MMPA.

California Sea Lion

    The California sea lion is now considered to be a full species, 
separated from the Galapagos sea lion (Zalophus wollebaeki) and the 
extinct Japanese sea lion (Zalophus japonicus) (Brunner, 2003; Wolf et 
al., 2007; Schramm et al., 2009). The breeding areas of the California 
sea lion are on islands located in southern California, western Baja 
California, and the Gulf of California. Genetic analysis of California 
sea lions identified five genetically distinct geographic populations: 
(1) Pacific Temperate, (2) Pacific Subtropical, (3) Southern Gulf of 
California, (4) Central Gulf of California, and (5) Northern Gulf of 
California (Schramm et al., 2009). In that study, the Pacific Temperate 
population included rookeries within U.S. waters and the Coronados 
Islands just south of U.S./Mexico border. Animals from the Pacific 
Temperate population range north into Canadian waters, and movement of 
animals between U.S. waters and Baja California waters has been 
documented, though the distance between the major U.S. and Baja 
California rookeries is at least 740.8 km (400 nmi). Males from western 
Baja California rookeries may spend most of the year in the U.S.
    The entire population cannot be counted because all age and sex 
classes are never ashore at the same time. In lieu of counting all sea 
lions, pups are counted during the breeding season (because this is the 
only age class that is ashore in its entirety), and the numbers of 
births is estimated from the pup count. The size of the population is 
then estimated from the number of births and the proportion of pups in 
the population. Censuses are conducted in July after all pups have been 
born. There are no rookeries at or near the Children's Pool. Population 
estimates for the U.S. stock of California sea lions, range from a 
minimum of 153,337 to an average estimate of 296,750 animals. They are 
considered to be at carrying capacity of the environment. The 
California sea lion is not listed under the ESA and the U.S. stock is 
not considered depleted or strategic under the MMPA.

Northern Elephant Seal

    Northern elephant seals breed and give birth in California (U.S.) 
and Baja California (Mexico), primarily on offshore islands (Stewart et 
al., 1994), from December to March (Stewart and Huber, 1993). Males 
feed near the eastern Aleutian Islands and in the Gulf of Alaska, and 
females feed further south, south of 45[ordm] North (Stewart and Huber, 
1993; Le Boeuf et al., 1993). Adults return to land between March and 
August to molt, with males returning later than females. Adults return 
to their feeding areas again between their spring/summer molting and 
their winter breeding seasons.
    Populations of northern elephant seals in the U.S. and Mexico were 
all originally derived from a few tens or a few hundreds of individuals 
surviving in Mexico after being nearly hunted to extinction (Stewart et 
al., 1994). Given the very recent derivation of most rookeries, no 
genetic differentiation would be expected. Although movement and 
genetic exchange continues between rookeries when they start breeding 
(Huber et al., 1991). The California breeding population is now 
demographically isolated from the Baja California population. The 
California breeding population is considered in NMFS stock assessment 
report to be a separate stock.
    A complete population count of elephant seals is not possible 
because all age classes are not ashore at the same time. Elephant seal 
population size is typically estimated by counting the number of pups 
produced and multiplying by the inverse of the expected ratio of pups 
to total animals (McCann, 1985). Based on the estimated 35,549 pups 
born in California in 2005 and an appropriate multiplier for a rapidly 
growing population, the California stock was approximately 124,000 in 
2005. The minimum population size for northern elephant seals can be 
estimated very conservatively as 74,913, which is equal to twice the 
observed pup count (to account for the pups and their mothers),

[[Page 25963]]

plus 3,815 males and juveniles counted at the Channel Islands and 
central California sites in 2005 (Lowry, NMFS unpublished data). Based 
on trends in pup counts, northern elephant seal colonies were 
continuing to grow in California through 2005, but appear to be stable 
or slowly decreasing in Mexico (Stewart et al., 1994). Northern 
elephant seals are not listed under the ESA and are not considered as 
depleted or a strategic stock under the MMPA.
    Further information on the biology and local distribution of these 
marine mammal species and others in the region can be found in the City 
of San Diego's 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/sars/.

Potential Effects on Marine Mammals

    The City of San Diego requests authorization for Level B harassment 
of three species of marine mammals (i.e., Pacific harbor seals, 
California sea lions, and northern elephant seals) incidental to the 
use of equipment and its propagation of in-air noise from various 
acoustic mechanisms associated with the proposed demolition and 
construction activities of the Children's Pool Lifeguard Station at La 
Jolla, California discussed above. Behavioral disturbance may 
potentially occur as well incidental to the visual presence of humans 
and demolition/construction activities; however, pinnipeds at this site 
have likely adapted or become habituated to human presence at this 
site. Large numbers of people come to the site to view the pinnipeds at 
all hours and they perform many activities that can disturb pinnipeds 
at other sites, but this often does not occur at Children's Pool as 
they seem to have habituated to human presence and associated noises 
(Hanan & Associates, 2004; 2011). Lifeguards at the Children's Pool and 
nearby areas estimate that an average of 1,556,184 people per year or 
129,682 per month visit the site from 2010 to 2012. A maximum of 15 
personnel, at any one time, are expected to be part of the proposed 
demolition and construction activities. Several species of marine 
mammals may potentially occur in the proposed specified geographic area 
and thus may be affected by the proposed action. Pacific harbor seals 
are the most common species, the California sea lion and northern 
elephant seal are observed occasionally, and thus considered likely to 
be exposed to sound associated with the demolition and construction 
activities.
    Current NMFS practice, regarding exposure of marine mammals to 
high-level in-air sounds, as a threshold for potential Level B 
harassment, is at or above 90 dB re 20 [micro]Pa for harbor seals and 
at or above 100 dB re 20 [micro]Pa for all other pinniped species 
(Lawson et al., 2002; Southall et al., 2007). NMFS does not expect 
exposure of marine mammals to high-level underwater sounds from 
demolition and construction activities that would be considered for 
potential Level B harassment. The acoustic mechanisms involved entail 
in-air non-impulsive noise caused by the demolition and construction 
activities. Expected in-air noise levels are anticipated to result in 
elevated sound intensities near the proposed demolition and 
construction activities. No other mechanisms are expected to affect 
marine mammal use of the area. The other activities, would not affect 
any haul-out and would not entail noise, and activity surrounding the 
water materially different from normal operations at the lifeguard 
station, to which the animals are likely already habituated.
    Since no demolition or construction activities will be performed 
during the pupping and weaning season (i.e., January through May), 
there will be no impacts on birthing rates or pup survivorship at the 
Children's Pool. There will be no in-water demolition and construction 
activities in or near the water so pinniped activities in the water 
should not be affected. Additionally, pinnipeds utilizing the 
Children's Pool beach as a haul-out site are a very small portion of 
the species and/or stock populations and any impacts would have little 
effect at the species and/or stock population levels.
    As noted above, current NMFS practice, regarding exposure of marine 
mammals to high-level in-air sounds, as a potential threshold for Level 
B harassment, is at or above 90 dB re 20 [micro]Pa for harbor seals and 
at or above 100 dB re 20 [micro]Pa for all other pinniped species. 
Pinnipeds at Children's Pool are likely already exposed to and 
habituated to loud noise and human presence, and thus may have areas of 
effect comparable to the radius of effect calculated for noise from the 
demolition and construction activities. Behavioral considerations 
suggest that the pinnipeds would be able to determine that a noise 
source does not constitute a threat if it is more than a certain 
distance away, and the sound levels involved are not high enough to 
result in injury (Level A harassment). Nonetheless, these data suggest 
that demolition and construction activities may affect pinniped 
behavior throughout the Children's Pool area, i.e., within 
approximately a few hundred feet of the proposed activity. The nature 
of that effect is unpredictable, but logical responses on the part of 
the pinnipeds include tolerance (noise levels would likely not be loud 
enough to induce temporary threshold shift in harbor seals), or 
avoidance by using haul-outs or by foraging outside of the immediate 
Children's Pool area.
    In-Air Noise--The principal source of in-air noise would be from a 
980 Case backhoe, dump truck, air compressor, electric screw guns, 
jackhammer, concrete saw, and chop saws used for the proposed 
demolition and construction activities. Background noise levels near 
the Children's Pool are likely already elevated due to normal 
activities. Marine mammals at Children's Pool haul-outs are presumably 
habituated to the daily coming and going of humans, automobiles, and to 
other existing activities at the proposed action area. These activities 
may occur at any time of the day for periods of up to several hours at 
a time. There have been no studies for ambient sound levels at the 
Children's Pool.
    There are so many human visitors to the Children's Pool site at all 
hours of the day and night, season, and weather that human scent and 
visual presence are generally not considered issues (Hanan, 2004; 
2011). At this site, the Pacific harbor seals are most disturbed when 
people get very close to them on the beach (i.e., probably 2 to 3 m 
[6.6 to 9.8 ft]. However, the City of San Diego wants to be authorized 
for incidental take coverage in case pinnipeds alert to the novel 
presence or sounds of equipment not previously experienced by pinnipeds 
at this location. The contractors will not directly approach the 
Pacific harbor seals during the proposed demolition and construction 
activities.
    At the individual level, a newly arrived pinniped (moved in from 
another area) may not have habituated to humans and noise as pinnipeds 
that have been on site for awhile. These recent arrivals may alert to 
these stimuli, perhaps flushing into the water. However, after a few 
days of using the beach at Children's Pool, the City of San Diego would 
expect the pinnipeds to habituate and not react to humans (unless close 
to them) or noises at the demolition and construction activities site.
    Although harbor seals could also be affected by in-air noise and 
activity associated with demolition and construction at the lifeguard, 
seals at Children's Pool haul-outs are

[[Page 25964]]

presumably habituated to human activity to some extent due to the daily 
coming and going of humans, and to other existing activities in the 
area. These activities may occur at any time of the day and may produce 
noise for periods of up to several hours at a time. The operation of 
loud equipment are above and outside of the range of normal activity at 
the Children's Pool and have the potential to cause seals to leave a 
haul-out at the Children's Pool. This would constitute Level B 
harassment (behavioral). In view of the relatively small area that 
would be affected by elevated in-air noise and the proximity to the 
haul-out sites, it appears probable that some seals could show a 
behavioral response, despite their habituation to current levels of 
human-generated noise; incidental take by this mechanism may occur 
during the demolition and construction activities.
    Harbor seal presence in the activity area is perennial, with daily 
presence at a nearby haul-out during the months when the activity would 
occur. The potentially affected seals include adults of both sexes. The 
harbor seals at Children's Pool may be residents, non-migratory, 
exhibit site fidelity at the haul-out sites. It is likely that many 
seals in the population would be affected more than once over the 
course of the proposed demolition and construction period; therefore, 
it is possible that some measure of adaptation or habituation would 
occur on the part of the seals, whereby they would tolerate elevated 
noise levels and/or utilize haul-outs relatively distant from the 
demolition and construction activities. This strategy is possible, but 
it is difficult to predict whether the harbor seals would show such a 
response. Project scheduling avoids sensitive life history phases of 
harbor seals. Project activities producing in-air noise would commence 
in June. Project activities producing in-air noise are scheduled to 
terminate at the end of December, which is before female seals begin to 
seek sites suitable for pupping.
    Effects on California Sea Lions and Northern Elephant Seals--
California sea lions and northern elephant seals, although abundant in 
northern California waters, have seldom been recorded at the Children's 
Pool. Their low abundance in the area may be due to the presence of a 
large and active harbor seal population there, which likely competes 
with the California sea lions and northern elephant seals for foraging 
resources. Any California sea lions that visit the action area during 
construction activities would be subject to the same type of impacts 
described above for harbor seals. There is a possibility of behavioral 
effects related to project acoustic impacts, in the event of California 
sea lion and northern elephant seal presence in the activity area. 
California sea lions and northern elephant seals have been seen in the 
activity area, albeit infrequently, and there are no quantitative 
estimates of the frequency of their occurrence. Assuming that they are 
present, it is possible California sea lions and northern elephant 
seals might be subject to behavioral harassment.
    The potential effects to marine mammals described in this section 
of the document do not take into consideration the proposed monitoring 
and mitigation measures described later in this document (see the 
``Proposed Mitigation'' and ``Proposed Monitoring and Reporting'' 
sections) which, as noted are designed to effect the least practicable 
adverse impact on affected marine mammal species or stocks.

Anticipated Effects on Marine Mammal Habitat

    All construction activities are beyond or outside the habitat areas 
where harbor seals and other pinnipeds are found. Visual barriers will 
be erected to shield construction activities from the potential 
acoustic effects and visual perception of pinnipeds. The general public 
will not be excluded from the beaches and areas outside the demolition 
and construction zone. Because the public occasionally harasses the 
harbor seals with various activities, the NMFS-qualified monitor will 
make observations and attempt to attribute any observed harassment to 
the public or to the demolition and construction activities and give 
all details in the observation report. If any short-term, temporary 
impacts to habitat due to sounds or visual presence of equipment and 
workers did occur, the City of San Diego would expect pinniped behavior 
to return to pre-demolition and construction conditions soon after the 
proposed activities are completed which is anticipated to occur before 
the next pupping season. This site is already very disturbed by member 
of the public who come to the area during the day and night to view the 
pinnipeds. The City of San Diego and NMFS do not project any loss or 
modification of physical habitat for these species. Any potential 
temporary loss or modification of habitat due to in-air noise or visual 
presence of equipment and workers during the proposed activities is 
expected by the City of San Diego and NMFS to be quickly restored after 
demolition and construction activities end and all equipment and 
barriers are removed.
    The anticipated adverse impacts upon habitat consist of temporary 
changes to the in-air acoustic environment, as detailed in the IHA 
application. These changes are minor, temporary, and of limited 
duration to the period of demolition and construction activities. No 
aspect of the proposed project is anticipated to have any permanent 
effect on the location of pinniped haul-outs in the area, and no 
permanent change in seal or sea lion use of haul-outs and related 
habitat features is anticipated to occur as a result of the proposed 
project. The temporary impacts on the acoustic environment are not 
expected to have any permanent effects on the species or stock 
populations of marine mammals occurring at the Children's Pool. The 
area of habitat affected is small and the effects are temporary, thus 
there is no reason to expect any significant reduction in habitat 
available for foraging and other habitat uses.
    NMFS anticipates that the action will result in no impacts to 
marine mammal habitat beyond rendering the areas immediately around the 
Children's Pool less desirable during demolition and construction 
activities of the Children's Pool Lifeguard Station as the impacts will 
be localized. Impacts to marine mammals, invertebrates, and fish 
species are not expected to be 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.
    The City of San Diego has established the Children's Pool as a 
shared beach for pinnipeds and people. During the pupping season a rope 
is placed along the upper part of the beach to designate how close 
people can come to the haul-out area. Swimming and other water 
activities are still allowed as long as there is no direct harassment 
of the pinnipeds. The proposed demolition and construction activities 
are planned to occur outside the harbor seal pupping and weaning 
periods. Visual and acoustic barriers will be constructed. The visual 
and acoustic barrier will likely be constructed of plywood, 1.8 to

[[Page 25965]]

2.4 m (6 to 8 ft) tall. The barriers will be placed at the site with 
input from NMFS Southwest Regional Office (SWRO) personnel so that they 
will hide as advantageously as possible the demolition and construction 
activities that may be seen by pinnipeds. The barriers may dampen the 
acoustic sound sources, but are not expected to exclude sound from the 
environment. As the site is a beach with construction along the cliff 
and on flat areas above the cliff, a complete barrier cannot likely be 
constructed to hide all demolition and construction activities for the 
proposed project. Once the walls of the lifeguard station's building 
are in place, much of the demolition and construction activities will 
take place above the Children's Pool beach (i.e., out of sight) as well 
as inside the building (i.e., a visual and partial sound barrier). 
There will be no activities in the ocean or closer to the water's edge 
and since harbor seals mate underwater in the ocean, there will be no 
impacts on mating activities. California sea lions and northern 
elephant seals are such infrequent users of this area and their 
rookeries are so far away (at least 104.6 km [65 miles] at offshore 
islands) that there will be no adverse impact on these species.
    The activity proposed by the applicant includes a variety of 
measures calculated to minimize potential impacts on marine mammals, 
including:
     Construction shall be prohibited during the Pacific harbor 
seal pupping season (January 1st to May 1st) and for an additional four 
weeks to accommodate lactation and weaning of late season pups. Thus, 
construction shall be prohibited from January 1st to June 1st.
     Heavy construction (highest sound levels) shall be 
scheduled during the annual period of lowest haul-out of occurrence, 
October to November.
     Construction shall be scheduled during the daily period of 
lowest haul-out occurrence, from approximately 8:30 a.m. to 3:30 p.m. 
Harbor seals typically have the highest daily or hourly haul-out period 
during the afternoon from 3:00 p.m. to 6:00 p.m.
     A visual and acoustic barrier will be erected and 
maintained for the duration of the project to shield demolition and 
construction activities from beach view. The temporary barrier shall 
consist of \1/2\ to \3/4\ inch (1.3 to 1.9 centimeters [cm]) plywood 
constructed 1.8 to 2.4 meters (m) (6 to 8 feet [ft]) high depending on 
the location.
     Use of trained PSOs to detect, document, and minimize 
impacts (i.e., possible shut-down of noise-generating operations 
[turning off the equipment so that in-air sounds associated with 
construction no longer exceed levels that are potentially harmful to 
marine mammals]) to marine mammals.

Timing Constraints for In-Air Noise

    To minimize in-air noise impacts on marine mammals, underwater 
construction activities shall be limited to the period when the species 
of concern will be least likely to be in the project area. The 
construction window for demolition and construction activities shall be 
from June 1, 2013 to December 23, 2013. Avoiding periods when the 
highest number of marine mammal individuals are in the action area is 
another mitigation measure to protect marine mammals from demolition 
and construction activities.
    More information regarding the City of San Diego's monitoring and 
mitigation measures, for the demolition and construction activities at 
the Children's Pool Lifeguard Station can be found in the IHA 
application.
    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable adverse impact on the affected marine mammal species and 
stocks and their habitat. NMFS's evaluation of potential measures 
included consideration of the following factors in relation in one 
another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation, including consideration of personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
activity.

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 implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for IHAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present in the action area.
    The City of San Diego has developed a monitoring plan (see Appendix 
I. Mitigated Negative Declaration in the IHA application) based on 
discussions between the project biologist, Dr. Doyle Hanan, and NMFS 
biologists. The plan has been vetted by City of San Diego planners and 
reviewers. The plan has been formal presented to the public for review 
and comment. The City of San Diego has responded in writing and in 
public testimony (see City of Council Hearing, December 14, 2011) to 
all public concerns.
    The basic plan is to survey prior to construction activities and 
then monitor demolition and construction activities by NMFS-approved 
Protected Species Observers (PSOs) with binoculars and handheld digital 
sound level measuring devices. PSOs will observe from a station along 
the breakwater wall as well as the base of the cliff below the 
demolition/construction area. PSOs will be on site approximately 30 
minutes before the start of demolition and construction activities and 
continue for 30 minutes after activities have ceased. Monitors will 
have authority to stop construction as necessary depending on sound 
levels, pinniped presence, and distance from sound sources. Daily 
monitoring reports will be maintained for periodic summary reports to 
the City of San Diego and to NMFS. Observations will be entered into 
maintained Hanan & Associates computers. The City of San Diego plans to 
follow the reporting in the Mitigated Negative Declaration that states 
``the biologist shall document field activity via the Consultant Site 
Visit Record. The Consultant Site Visit Record shall be either emailed 
or faxed to the City of San Diego's Mitigation Monitoring Coordination 
process (MMC) on the 1st day of monitoring, the 1st week of each month, 
the last day of monitoring, and immediately in the case of any 
undocumented discovery. The project biologist shall submit a final 
construction monitoring report to MMC within 30 days of construction 
completion.'' The MMC ``coordinates the monitoring of development 
projects and requires that changes are approved and implemented to be 
in conformance with the permit requirements and to minimize any damage 
to the environment.'' These documents will also be sent to NMFS.
    The City of San Diego will include sound measurements at and near 
the demolition and construction site in their initial survey prior to 
the proposed activities as a background and baseline for the project. 
While no specific

[[Page 25966]]

acoustic study is planned, the City of San Diego's Mitigated Negative 
Declaration states that marine mammal monitoring shall be conducted for 
three to five days prior to construction and shall include hourly 
systematic counts of pinnipeds using the beach, seal rock, and 
associated reef areas. Monitoring three to five days prior to 
construction will provide baseline data regarding recent haul-out 
behavior and patterns as well as background noise levels near the time 
of demolition and construction activities. No monitoring is planned to 
be conducted after demolition and construction activities have been 
finished, as it was not anticipated nor addressed in project funding. 
Monitoring shall assess behavior and potential behavioral responses to 
construction noise and activities. Visual digital recordings and 
photographs shall be used to document individuals and behavioral 
responses to construction. The City of San Diego plan to make hourly 
counts of the number of pinnipeds present and record sound or visual 
events that result in behavioral responses and changes, whether during 
construction or from public stimuli. During these events, pictures and 
video will also be taken when possible. The ``Mitigated Negative 
Declaration'' states ``monitoring shall assess behavior and potential 
behavioral responses to construction noise and activities. Visual 
digital recordings and photographs shall be used to document 
individuals and behavioral responses to construction.''
    The City of San Diego is open to working with the Western Alliance 
for Nature's La Jolla Harbor Seal Webcam, which can be found online at: 
http://www.wanconservancy.org/la_jolla_harbor_seal_earthcam.htm. 
The City of San Diego may do periodic checks for monitoring purposes. 
The camera is not expected to replace Protected Species Observers at 
the site making accurate counts, measuring sound levels and observing 
the public and the construction, as well as the seals. In the camera 
view, you may be able to see visual evidence of Level B harassment, but 
it probably would not be able to be distinguished between harassment 
from demolition and construction activities and the public since the 
camera only shows the Children's Pool beach and seals (usually a 
specific portion of the beach, but not the reef nor nearby beaches).
    Consistent with NMFS procedures, the following marine mammal 
monitoring and reporting shall be performed for the proposed action:
    (1) A NMFS-approved or -qualified Protected Species Observer (PSO) 
shall attend the project site prior to, during, and after construction 
activities cease each day throughout the demolition and construction 
window.
    (2) The PSO shall be approved by NMFS prior to demolition and 
construction activities.
    (3) The PSO shall search for marine mammals within the Children's 
Pool area.
    (4) The PSO shall be present on the pier during demolition and 
construction activities to observe for the presence of marine mammals 
in the vicinity of the proposed specified activity. All such activity 
will occur during daylight hours (i.e., 30 min after sunrise and 30 min 
before sunset). If inclement weather limits visibility within the area 
of effect, the PSO will perform visual scans to the extent conditions 
allow
    (5) If marine mammals are sighted by the PSO within the acoustic 
thresholds areas, the PSO shall record the number of marine mammals 
within the area of effect and the duration of their presence while the 
noise-generating activity is occurring. The PSO will also note whether 
the marine mammals appeared to respond to the noise and if so, the 
nature of that response. The PSO shall record the following 
information: Date and time of initial sighting, tidal stage, weather, 
conditions, Beaufort sea state, species, behavior (activity, group 
cohesiveness, direction and speed of travel, etc.), number, group 
composition, distance to sound source, number of animals impacted, 
demolition/construction activities occurring at time of sighting, and 
monitoring and mitigation measures implemented (or not implemented). 
The observations will be reported to NMFS.
    (6) A final report will be submitted summarizing all in-air 
demolition and construction activities and marine mammal monitoring 
during the time of the authorization, and any long term impacts from 
the project.
    A written log of dates and times of monitoring activity will be 
kept. The log shall report the following information:
     Time of observer arrival on site;
     Time of the commencement of in-air noise generating 
activities, and description of the activities (e.g., pile removal, 
augering, or pile installation);
     Distances to all marine mammals relative to the sound 
source;
     For harbor seal observations, notes on seal behavior 
during noise-generating activity, as described above, and on the number 
and distribution of seals observed in the project vicinity;
     For observations of all marine mammals other than harbor 
seals, the time and duration of each animal's presence in the project 
vicinity; the number of animals observed; the behavior of each animal, 
including any response to noise-generating activities;
     Time of the cessation of in-air noise generating 
activities; and
     Time of observer departure from site.

All monitoring data collected during construction will be included in 
the biological monitoring notes to be submitted. A final report 
summarizing the construction monitoring and any general trends observed 
will also be submitted to NMFS within 90 days after monitoring has 
ended during the period of the lifeguard station construction.

    The City of San Diego would notify NMFS Headquarters and the NMFS 
Southwest Regional Office prior to initiation of the demolition and 
construction activities. A draft final report must be submitted to NMFS 
within 90 days after the conclusion of the demolition and construction 
activities of the Children's Pool Lifeguard Station. The report would 
include a summary of the information gathered pursuant to the 
monitoring requirements set forth in the IHA, including dates and times 
of operations, and all marine mammal sightings (dates, times, 
locations, species, behavioral observations [activity, group 
cohesiveness, direction and speed of travel, etc.], tidal stage, 
weather conditions, Beaufort sea state and wind force, activities, 
associated demolition and construction activities). A final report must 
be submitted to the Regional Administrator within 30 days after 
receiving comments from NMFS on the draft final report. If no comments 
are received from NMFS, the draft final report would be considered to 
be the final report.
    While the proposed IHA would not authorize injury (i.e., Level A 
harassment), serious injury, or mortality, should the applicant, 
contractor, monitor or any other individual associated with the 
demolition and construction project observe an injured or dead marine 
mammal, the incident (regardless of cause) will be reported to NMFS as 
soon as practicable. The report should include species or description 
of animal, condition of animal, location, time first found, observed 
behaviors (if alive) and photo or video, if available.
    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 (Level A harassment), serious injury or mortality, 
the City of San Diego shall immediately cease the specified activities 
and immediately report the incident to the Chief of the

[[Page 25967]]

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 Southwest Regional Stranding 
Coordinator ([email protected]). The report must include the 
following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     The type of activity involved;
     Description of the circumstances during and leading up to 
the incident;
     Status of all sound source use in the 24 hours preceding 
the incident; water depth; environmental conditions (e.g., wind speed 
and direction, Beaufort sea state, cloud cover, and visibility);
     Description of marine mammal observations in the 24 hours 
preceding the incident; species identification or description of the 
animal(s) involved;
     The fate of the animal(s); and photographs or video 
footage of the animal (if equipment is available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with the City of 
San Diego to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The City of San 
Diego may not resume their activities until notified by NMFS via 
letter, email, or telephone.
    In the event that the City of San Diego 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), the City of San Diego 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 
Southwest Regional Office (562-980-4017) and/or by email to the 
Southwest Regional Stranding Coordinator ([email protected]). The 
report must include the same information identified above. Activities 
may continue while NMFS reviews the circumstances of the incident. NMFS 
will work with Trinidad Rancheria to determine whether modifications in 
the activities are appropriate.
    In the event that the City of San Diego discovers an injured or 
dead marine mammal, and the lead PSO determines that the injury or 
death is not associated with or related to the activities authorized 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the City of San Diego shall 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 
Southwest Regional Office (562-980-4017) and/or by email to the 
Southwest Regional Stranding Coordinator ([email protected]), 
within 24 hours of the discovery. The City of San Diego shall 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 City of San Diego and NMFS anticipate takes of Pacific harbor 
seals, California sea lions, and northern elephant seals by Level B 
(behavioral) harassment only incidental to the proposed project at the 
Children's Pool. No takes by injury (Level A harassment), serious 
injury, or mortality is expected. There is a high likelihood that many 
of the harbor seals present during the demolition and construction 
activities will not be flushed off of the beach or rocks, as pinnipeds 
at this site are conditioned to human presence and loud noises (Hanan, 
2004; 2011) (see http://www.youtube.com/watch?v=4IRUYVTULsg).
    With demolition and construction activities scheduled to begin June 
1, 2013, the City of San Diego expects a range of 0 to 190 harbor seals 
to be present daily during June and a seasonal decline through November 
to about 0 to 50 harbor seals present daily. If all of the estimated 
harbor seals present are taken by incidental harassment each day, there 
could be a maximum of 12,783 takes (i.e., approximately 3,579 adult 
males and 2,684 juvenile males, 3,451 adult females and 2,429 juvenile 
females based on age and sex ratios presented in Harkonen et al., 1999) 
over the entire duration of the demolition and construction activities. 
The City of San Diego expects about 90% of the adult females to be 
pregnant after June and July (Greig, 2002). An unknown portion of the 
incidental takes would be from repeated exposures as harbor seals leave 
and return to the Children's Pool area. A polynomial curve fit to 
counts by month was used by the City of San Diego to estimate the 
number of harbor seals expected to be hauled-out by day (see below and 
Figure 1 of the IHA application).

[[Page 25968]]

[GRAPHIC] [TIFF OMITTED] TN03MY13.017

    Assuming the total seals predicted to haul-out daily at the 
Children's Pool are exposed to sound levels that are considered Level B 
harassment during days where sound is predicted to exceed 90 dB at the 
demolition/construction site (106 days), there could be a maximum of 
approximately 12,783 incidental takes (i.e., exposures) of 
approximately 600 individual Pacific harbor seals over the duration of 
the proposed activities. The estimated 600 individual Pacific harbor 
seals will be taken by Level B harassment multiple times during the 
proposed demolition and construction activities. Very few California 
sea lions and/or northern elephant seals are ever observed at the 
Children's Pool (i.e., one or two individuals). The City of San Diego 
requests the authority to incidentally take (i.e., exposures) 12,783 
Pacific harbor seals, 100 California sea lions, and 25 northern 
elephant seals of 600, 2, and 1 individual, respectively. More 
information on the number of requested authorized takes, estimated 
number of individuals, and the approximate percentage of the stock for 
the three species in the proposed action area can be found in Table 2 
(below).
    NMFS will consider pinnipeds flushing into the water; moving more 
than 1 m (3.3 ft), but not into the water; becoming alert and moving, 
but do not move more than 1 m; and changing direction of current 
movement by individuals as behavioral criteria for take by Level B 
harassment. The City of San Diego will estimate the portion of 
pinnipeds present that are observed to exhibit these behaviors as well 
as the apparent source of the stimulus.

[[Page 25969]]



   Table 2--Summary of the Anticipated Incidental Take by Level B Harassment of Pinnipeds for the City of San
Diego's Proposed Demolition and Construction Activities Generating In-Air Noise at the Children's Pool Lifeguard
                                         Station in La Jolla, California
----------------------------------------------------------------------------------------------------------------
                                                             Requested take       Estimated        Approximate
                                                              authorization       number of       percentage of
                          Species                              (number of        individuals     estimated stock
                                                               exposures)           taken         (individuals)
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal.......................................            12,783               600              1.98
California sea lion.......................................               100                 2             <0.01
Northern elephant seal....................................                25                 1             <0.01
----------------------------------------------------------------------------------------------------------------

Encouraging and Coordinating Research

    Each demolition/construction phase and potential harassment 
activity will be evaluated as to observed sound levels and any pinniped 
reaction by type of sound source. Flushing will be documented by sex 
and age class. These data will provide instructional for IHA permitting 
in future projects. Potential mitigation will be discussed and 
suggested in the final report.

Negligible Impact and Small Numbers Analysis 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); and
    (3) The context in which the takes occur (i.e., impacts to areas of 
significance, impacts to local populations, and cumulative impacts when 
taking into account successive/contemporaneous actions when added to 
baseline data);
    (4) The status of stock or species of marine mammals (i.e., 
depleted, not depleted, decreasing, increasing, stable, impact relative 
to the size of the population);
    (5) Impacts on habitat affecting rates of recruitment/survival; and
    (6) The effectiveness of monitoring and mitigation measures.
    No injuries (Level A harassment), serious injuries, or mortalities 
are anticipated to occur as a result of the City of San Diego's 
proposed demolition and construction activities, and none are proposed 
to be authorized by NMFS. The proposed activities are not expected to 
result in the alteration of reproductive behaviors, and the potentially 
affected species would be subjected to temporary only to temporary and 
minor behavioral impacts. The project scheduling avoids sensitive life 
stages for Pacific harbor seals. Project activities producing in-air 
noise would commence in June. This is after the end of the pupping 
season and affords additional time to accommodate lactation and weaning 
of season pups as well as considers periods of lowest haul-out 
occurrence. Table 2 of this document outlines the number of requested 
Level B harassment takes that are anticipated as a result of these 
activities. Due to the nature, degree, and context of Level B 
(behavioral) harassment anticipated and described (see ``Potential 
Effects on Marine Mammals'' section above) in this notice, this 
activity is not expected to impact rates of annual recruitment or 
survival for the affected species or stock (i.e., Pacific harbor seals, 
California sea lions, and northern elephant seals), particularly given 
the NMFS and the applicant's proposal to implement mitigation, 
monitoring, and reporting measures to minimize impacts to marine 
mammals.
    For the other marine mammal species that may occur within the 
proposed action area, there are no known designated or important 
feeding and/or reproductive areas. Many animals perform vital 
functions, such as feeding, resting, traveling, and socializing, on a 
diel cycle (i.e., 24 hour 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). However, for many years Pacific harbor seals 
have been hauling-out at Children's Pool during the year (including 
during pupping season and while females are pregnant) and have been 
exposed to anthropogenic sound sources such as vehicle traffic, human 
voices, etc. and are frequently exposed to stimuli from human presence. 
While studies have shown the types of sound sources used during the 
proposed demolition and construction activities have the potential to 
displace marine mammals from breeding areas for a prolonged period 
(e.g., Lusseau and Bejder, 2007; Weilgart, 2007), based on the best 
available information, this does not seem to be the case for the 
Pacific harbor seals at the Children's Pool. Over many years, the 
Pacific harbor seals have repeatedly hauled-out to pup and overall the 
NMFS Stock Assessment Reports (NMFS, 2011) for this stock have shown 
that the population is increasing and is considered stable. 
Additionally, the demolition and construction activities will be 
increasing sound levels in the environment in a relatively small area 
surrounding the lifeguard station (compared to the range of the 
animals), and some animals may only be exposed to and harassed by sound 
for less than a day.
    Of the 3 marine mammal species under NMFS jurisdiction that may or 
are known to likely occur in the action area, none are listed as 
threatened or endangered under the ESA. No incidental take has been 
requested to be authorized for ESA-listed species as none are expected 
to be within the proposed action area. There is generally insufficient 
data to determine population trends for the other depleted species in 
the study area. To protect these animals (and other marine mammals in 
the action area), the City of San Diego must prohibit demolition and 
construction activities during harbor seal pupping season; scheduling 
demolition and construction activities with highest sound levels during 
the annual period of lowest haul-out occurrence and during the daily 
period of lowest haul-out occurrence; limiting activities to the hours 
of daylight; erecting a temporary visual and acoustic barrier; and 
using PSOs. No injury, serious injury, or mortality is expected to 
occur and due to the nature, degree, and context of the Level B 
harassment anticipated, and the activity is not expected to impact 
rates of recruitment or survival.

[[Page 25970]]

    As mentioned previously, NMFS estimates that 3 species of marine 
mammals under its jurisdiction could be potentially affected by Level B 
harassment over the course of the IHA. It is estimated that 600 
individual Pacific harbor seals, 2 individual California sea lions, and 
1 northern elephant seal will be taken (multiple times) by Level B 
harassment, which would be approximately 1.98, less than 0.01, and less 
than 0.01 of the respective stocks. The population estimates for the 
marine mammal species that may be taken by Level B harassment were 
provided in Table 2 of this document. NMFS's practice has been to apply 
the 90 dB re 20 [mu]Pa and 100 dB re 20 [mu]Pa received level threshold 
for in-air sound levels to determine whether take by Level B harassment 
occurs. Southall et al. (2007) provide a severity scale for ranking 
observed behavioral responses of both free-ranging marine mammals and 
laboratory subjects to various types of anthropogenic sound (see Table 
4 in Southall et al. [2007]). NMFS has not established a threshold for 
Level A harassment (injury) for marine mammals exposed to in-air noise, 
however, Southall et al. (2007) recommends 149 dB re 20 [mu]Pa (peak 
flat) as the potential threshold for injury from in-air noise for all 
pinnipeds. No in-air sounds from demolition and construction activities 
will exceed 110 dB at the source.
    While behavioral modifications, including temporarily vacating the 
area during the demolition and construction activities, may be made by 
these species to avoid the resultant acoustic disturbance, the 
availability of alternate areas within these areas for species and the 
short and sporadic duration of the activities, have led NMFS to 
preliminarily determine that the taking by Level B harassment from the 
specified activity will have a negligible impact on the affected 
species in the specified geographic region. NMFS believes that the time 
period of the demolition and construction activities, the requirement 
to implement mitigation measures (e.g., prohibiting demolition and 
construction activities during pupping season, scheduling operations to 
periods of the lowest haul-out occurrence, and visual and acoustic 
barriers), and the inclusion of the monitoring and reporting measures, 
will reduce the amount and severity of the potential impacts from the 
activity to the degree that will have a negligible impact on the 
species or stocks in the action area.
    NMFS has preliminarily determined, provided that the aforementioned 
mitigation and monitoring measures are implemented, that the impact of 
the demolition and construction activities at the Children's Pool 
Lifeguard Station in La Jolla, California, June to December, 2013, may 
result, at worst, in a temporary modification in behavior and/or low-
level physiological effects (Level B harassment) of small numbers of 
certain species of marine mammals. See Table 2 for the requested 
authorized take numbers of marine mammals.

Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

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

Endangered Species Act

    NMFS (Permits and Conservation Division) has determined that a 
section 7 consultation for the issuance of an IHA under section 
101(a)(5)(D) of the MMPA for this activity is not necessary for any 
ESA-listed marine mammal species under its jurisdiction as the proposed 
action will not affect ESA-listed species.

National Environmental Policy Act

    NMFS will conduct a NEPA analysis to evaluate the effects of 
authorizing the proposed take of marine mammals prior to making a final 
determination on the issuance of the IHA. This notice, and referenced 
documents, including the IHA application provide the environmental 
issues and information relevant to the demolition and construction 
activities as well as those specific to NMFS's issuance of the IHA.

Proposed Authorization

    NMFS proposes to issue an IHA to the City of San Diego, 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: April 29, 2013.
Perry Gayaldo,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2013-10529 Filed 5-2-13; 8:45 am]
BILLING CODE 3510-22-P