[Federal Register Volume 78, Number 130 (Monday, July 8, 2013)]
[Notices]
[Pages 40705-40726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16263]


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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; issuance of an Incidental Take Authorization (ITA).

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the City of San Diego to 
take small numbers of three species of marine mammals, by Level B 
harassment, incidental to demolition and construction activities of the 
Children's Pool Lifeguard Station in La Jolla, California, June to 
December 2013.

DATES: Effective June 28, 2013, through June 27, 2014.

ADDRESSES: A copy of the final IHA and application are available by 
writing 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 or by telephoning the 
contacts listed here.
    A copy of the IHA 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.

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, 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

[[Page 40706]]

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 
planned to take place during June to December 2013 in La Jolla, 
California. On May 3, 2013, NMFS published a notice in the Federal 
Register (78 FR 25958) making preliminary determinations and proposing 
to issue an IHA. The notice initiated a 30-day public comment period. 
Additional information on the demolition and construction activities at 
the Children's Pool Lifeguard Station is contained in the application, 
which is available upon request (see ADDRESSES).

Description of the Specified Activity

    The Children's Pool was created in 1931 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 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 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 planned 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. Generally, harbor seals are considered skittish 
and have the tendency to react or flush into the water at low levels of 
sound and/or movements. While a range of behavioral responses can be 
expected, 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 haul-out site and rookery, and 
the harbor seals observed at this location are unusually tolerant to 
the presence of humans, and do not respond in the same manner when 
exposed to stimuli (e.g., laughing, clapping, stomping, climbing, 
snorkeling, swimming, wading, traffic, sirens, barking dogs, and road 
construction) when compared to the behavior of other harbor seals in 
other ``non-urbanized'' areas (Yochem and Stewart, 1998; Hanan & 
Associates, 2004; 2011; Hanan, 2005) (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, during, and after the demolition and construction 
activities.
    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

[[Page 40707]]

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 demolition and 
construction days) and be completed by December 15, 2013. Demolition 
and construction activities will occur Monday through Friday (no work 
will occur on holidays) during daylight hours only, 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;
    (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--Approximately 12 days.
    (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--Approximately 13 days.
    (3.) Site preparation and utilities:
    Rough grade building site and modify underground utilities.
    Equipment--loader, backhoe, and truck.
    Timeframe--Approximately 17 days.
    (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--Approximately 22 days.
    (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--Approximately 35 days.
    (6.) Building exterior:
    Doors and windows, siding paint, light fixtures, and plumbing 
fixtures.
    Equipment--truck, hand/power tools, and chop saw.
    Timeframe--Approximately 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--Approximately 37 days.
    (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--Approximately 37 days.
    (9.) Final inspection, demobilization:
    System testing, remove construction equipment, inspection, and 
corrections.
    Equipment--truck, and hand/power tools.
    Timeframe--Approximately 41 days.
    The exact dates of the planned activities depend on logistics and 
scheduling. Additional details regarding the 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.

Dates, Duration, and Specific Geographic Region

    The La Jolla Children's Pool Lifeguard Station is located at 827 
\1/2\ 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., December 15th to May 30th; see page 5 
of the Negative Declaration in the IHA application), work on this 
project can only be performed between June 1st and December 15th 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 
15, 2013. The IHA may extend through June of 2014 to finish the 
demolition and construction activities if needed. 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.

Comments and Responses

    A notice of the proposed IHA for the City of San Diego's demolition 
and construction activities was published in the Federal Register on 
May 3, 2013 (78 FR 25958). During the 30-day public comment period, 
NMFS received comments from the Marine Mammal Commission (Commission), 
Western Alliance for Nature (WAN), San Diego Council of Divers (SDCOD), 
and numerous individuals. The comments are online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Following are their 
substantive comments and NMFS's responses:
    Comment 1: The Commission recommends that NMFS issue the IHA, 
subject to inclusion of the proposed mitigation and monitoring 
measures.

[[Page 40708]]

    Response: NMFS concurs with the Commission's recommendation and has 
issued the IHA to the City of San Diego. NMFS has modified several of 
the monitoring and mitigation measures included in the proposed IHA for 
practicability reasons, as well as included several additional measures 
(see ``Mitigation'' and ``Monitoring and Reporting'' sections below for 
more information).
    Comment 2: SDCOD and several individuals support the City of San 
Diego's demolition and construction activities at the Children's Pool 
Lifeguard Station and would like the action to begin immediately. The 
IHA application is well-researched and accurate, as it invokes every 
necessary caution and more, as Dr. Doyle Hanan has thoroughly 
documented the information in reports and has shown that the population 
of harbor seals is robust and resilient and not adversely impacted by 
human activity. The area is considered very valuable for recreational 
purposes to people who live near this location. The construction of the 
new lifeguard station is important for human safety.
    Response: NMFS has factored the commenters' recommendations and 
opinions into our final decision.
    Comment 3: An individual state's that they support the Children's 
Pool as an important haul-out site and rookery for harbor seals and 
other marine mammals, and oppose the issuance of the IHA to the City of 
San Diego.
    Response: Since February 2000, NMFS has managed the Children's Pool 
as a haul-out and rookery for harbor seals and other pinnipeds. NMFS 
based this decision on the understanding that harbor seals first began 
to haul-out at the Children's Pool in 1995, with ever increasing 
numbers and in 1999, for the first time, harbor seal pup births were 
documented at the Children's Pool. As described in detail in the 
Federal Register notice for the proposed IHA (78 FR 25957, May 3, 
2013), as well as in this document, NMFS does not believe that the City 
of San Diego's demolition and construction activities would cause 
injury, serious injury, or mortality to marine mammals, nor are those 
effects authorized under the IHA. The required monitoring and 
mitigation measures that the City of San Diego would implement during 
the demolition and construction activities would further reduce the 
adverse effects on marine mammals to the lowest levels practicable. 
NMFS anticipates only behavioral disturbance to occur during the 
conduct of the demolition and construction activities at the Children's 
Pool Lifeguard Station.
    Comment 4: WAN and several individuals state that all demolition 
and construction work should be completed and cease after November 1st 
to avoid sensitive and critical life stages of harbor seals and not 
cause displacement from breeding areas. In the pregnancy cycle, the 
female is impregnated soon after weaning the pup. If the majority of 
births occur February, March, and April, weaning occurs from mid-March 
through mid-May. Implantation occurs as early as mid-April through mid-
June. The earliest second trimester could occur as early as mid-July. 
The earliest third trimester could occur in November.
    Pregnant females have been sighted on the beach beginning in late 
October to early November. Approximately 90% of adult females are in 
the advanced stages of pregnancy by early November. Hauling-out to rest 
is a daily requirement, and prolonged exposure to demolition and 
construction activities has the potential to displace marine mammals 
from breeding areas. The proposed IHA allows demolition and 
construction activities to continue until December 31st, which is two 
weeks after the start of the pupping season (at this latitude) and long 
after the harbor seals are in advanced stages of pregnancy. The project 
scheduling includes demolition and construction activities during use 
by pregnant females and goes into the start of the pupping season 
(officially starts December 15th). Therefore, it does not avoid 
sensitive life stages. If the project is allowed to continue through 
the end of December, it could result in premature births and abortions, 
as well as site abandonment, when the pregnant females are subjected to 
constant high levels of stress. Any major disruption could be harmful 
to the pregnant females and their unborn pups (which could also affect 
the viability of the harbor seal colony at the Children's Pool) (Yochem 
and Stewart, 1998). An earlier end-date would minimize the risk to 
pregnant females, give them a chance to rest and prepare for birth, and 
reduce impacts to the rookery. It is pure speculation to state that the 
activities will not result in the alteration of reproductive behaviors 
or have any impact on site selection or birthing, particularly since 
the demolition and construction noise will continue into the late 
stages of pregnancy. The potential for threatening the viability of the 
pregnancy are definitely present during this period of demolition and 
construction. Therefore, the level of incidental harassment should be 
elevated to Level A harassment.
    Response: NMFS included the date of December 31st in the proposed 
IHA, but we have since changed that date and required that the City of 
San Diego to cease planned demolition and construction activities for 
the Children's Pool Lifeguard Station by December 15, 2013. No 
demolition and construction activities will occur from December 15th to 
June 1st. This should provide more protection for the pregnant and 
nursing harbor seals in case they give birth before January 1st.
    Harbor seals breed shortly after weaning their pups. Delayed 
implantation of the fertilized blastocyst occurs 1.5 to 3 months 
following breeding. The gestation period is approximately 9 months. The 
first full-term harbor seal pups are usually born at Children's Pool in 
January. Pups typically wean from their mothers in 4 to 7 weeks. The 
last pups of the season may not wean until the end of May (Wilkin, 
2004). NMFS has received documented reports of aborted harbor seal pups 
at Children's Pool. One potential cause of abortion or premature 
parturition is elevated maternal stress of pregnant harbor seal 
females, and this cannot be ruled out. However, other causes, such as 
infection disease or genetic conditions, cannot be ruled out either. 
Increased stress of pregnant harbor seals could potentially result in 
abortions or premature parturition (Wilkin, 2004). Dr. Hanan (2005) 
states that ``it is normal for there to be some premature harbor seal 
pup births and pup abandonment. There are many possible reasons for 
these occurrences. For example, a female may reject a pup if something 
is biologically wrong with the pup.'' Based on his extensive 
experience, interactions with humans are not likely to be a significant 
cause of harbor seal pup abandonment.
    In 2006, the pupping season was considered by the City of San Diego 
to be from January 1st to May 1st. In 2007, it was extended to December 
15th to May 15th to provide more protection for the pregnant and 
nursing harbor seals. The docent program at the Children's Pool has 
observed and reported some premature births in mid-December; however, 
none of the four scientific papers written on the Children's Pool have 
observed births in December. In comparison to the City of San Diego's 
originally proposed demolition and construction schedule, the 
activities were changed to start in early to mid-June 2013, with all of 
the heavy demolition and construction activities to be completed by 
November 1, 2013. The revised timing avoids the heaviest portion of the 
demolition and construction during November and

[[Page 40709]]

December. There are 8 days in November and 2 days in December scheduled 
for sound to exceed 100 dB at the source (not to exceed 90 dB at the 
haul-out area closest to the demolition and construction activities). 
These activities are related to hardscape and landscaping activities, 
finish work, and demobilization of construction equipment. These 
activities should pose little, if any, potential impacts that would be 
considered Level B harassment to harbor seals at the Children's Pool.
    The MMPA defines Level A harassment as ``any act of pursuit, 
torment, or annoyance which has the potential to injure a marine mammal 
or marine mammal stock in the wild.'' As described in detail in the 
Federal Register notice for the proposed IHA (78 FR 25957, May 3, 
2013), as well as in this document, NMFS does not believe that the City 
of San Diego's demolition and construction activities would cause 
injury, serious injury, or mortality to marine mammals, nor are those 
authorized under the IHA. The required monitoring and mitigation 
measures that the City of San Diego would implement during the 
demolition and construction activities would further reduce the adverse 
effects on marine mammals to the lowest levels practicable. NMFS 
anticipates only behavioral disturbance to occur during the conduct of 
the demolition and construction activities at the Children's Pool 
Lifeguard Station.
    Comment 5: WAN and several individuals state that access to the 
Children's Pool beach must be closed to the public as direct harassment 
occurs on a regular basis. NMFS must require the City of San Diego to 
close Casa Beach during the demolition and construction of the 
lifeguard station and maintain the closure for 60 to 90 days after 
completion of the project, for public safety reasons for humans and to 
protect harbor seals from possible adverse impacts from the noise, 
equipment, and workers. The City of San Diego can close the beach as 
part of the Coastal Development Permit (CDP) for the demolition and 
construction without having to obtain California Coastal Commission 
approval by barricading the stairs. The stairs are under the City of 
San Diego's jurisdiction and the CDP for the demolition and 
construction is under the City of San Diego and was never appealed to 
the California Coastal Commission. This is highly feasible and should 
be required.
    Although the IHA requires monitoring and recording the impact of 
the demolition and construction activities on the harbor seals, that is 
not possible as long as humans are present at the beach, since there is 
no way to distinguish between the impacts of the demolition and 
construction activities and the impacts from human presence. Human 
presence, which continually causes large flushes and harassment of 
these harbor seals, will continue to be allowed and the monitoring does 
not even bother to record the presence of people on the beach. The 
contention that these harbor seals are habituated to the presence of 
humans and therefore will not be impacted by the sound of demolition 
and construction activities is not accurate. These harbor seals react 
to both human disturbance and sound, and in particular are not 
habituated at all to the demolition and construction noise. There is no 
attempt made to provide a mechanism to distinguish these two separate 
impacts. Monitoring without the presence of the public will allow for a 
more accurate determination as to what the short-term and long-term 
impacts of the demolition and construction activities may have on 
harbor seals in the action area.
    Response: Closing the beach during the demolition and construction 
activities as well as for 60 to 90 days after the completion of the 
project would require a permit from the California Coastal Commission 
and is not feasible at this time. It is also not within NMFS's 
jurisdiction. There are signs posted at the Children's Pool warning 
that harassment of marine mammals is against the law, although no such 
signage is required by law. NMFS has posted a sign at the Children's 
Pool that states ``Warning! Marine mammals are protected by Federal 
laws. Please! Do NOT disturb marine mammals. Observe them from a safe 
distance and keep pets on a leash. Marine mammals are wild animals and 
can be dangerous! It is against the law to feed, harass, hunt, capture, 
or kill marine mammals. This includes any act of pursuit, torment, or 
annoyance that has the potential to injure or disturb a marine mammal. 
Violators are subject to civil and criminal penalties under the Marine 
Mammal Protection Act. Report violations to the NMFS Enforcement 
Hotline: 1-800-853-1964.''
    While the City of San Diego and NMFS agree that harbor seals often 
alert or flush for minor, as well as, significant stimulus including 
sound and visual cues, we believe that required NMFS-approved Protected 
Species Observers (PSOs) will be able to differentiate between 
demolition and construction-related disturbances versus those from the 
presence of the public that are unrelated to the demolition and 
construction disturbances. The benefit of monitoring by PSOs will be to 
distinguish, document and provide insight on impacts from the presence 
of humans and/or the demolition and construction activities. Dr. Hanan, 
the lead PSO, has substantial experience observing pinniped behavior 
(he first started observing harbor seals in this area in 1979 and has 
spent significant time observing seals along the U.S. west coast and 
offshore islands during the last 34 years) and the data collected will 
hopefully allow the City of San Diego to be able to identify these 
causes, especially for flushing and other behavioral responses in 
nearly all cases. When observing harbor seals, sometimes there are 
alerts and ``flushings'' for no apparent reason, which is all the more 
reason to have PSO's on-site documenting harbor seal behavior, human 
presence, and demolition and construction activities for comparison to 
previous observations at this site and other sites with harbor seals 
that are away from the Children's Pool. NMFS and the City of San Diego 
do not see the need to close the stairs and beach to the public in 
order to improve monitoring.
    Comment 6: WAN and several individuals recommend providing adequate 
sound mitigation to reduce the in-air sound levels and protect the 
harbor seals hearing from the in-air noise generated by the demolition 
and construction activities. There is no attempt to reduce the sound 
levels. This is critical since harbor seals orient by sound as well as 
visual cues, both on land and in the water. Above 90 dB, harbor seals 
hearing can be permanently impaired. The IHA takes the position that 
because many of the harbor seals in La Jolla are acclimated to humans 
watching them from distances of 15.2 m (50 ft) or sometimes less, that 
the harbor seal colony will therefore be unaffected by noise levels of 
90 to 110 dB. There is no scientific basis to support this assertion.
    The project intends to create a visible barrier with a plywood wall 
and then claims this will also serve as an acoustic barrier. This is 
not the case, as visual barriers are not necessarily acoustic barriers. 
Here only one layer of plywood is planned and that will have no impact 
on the sound levels, there is no evidence that a single layer of 
plywood has any acoustic deadening properties at all. The City of San 
Diego should erect a temporary sound barrier wall which would consist 
of a sound blanket or two layers of plywood with acoustic deadening 
material between them (which should be at least as wide as it is tall). 
Other methods to reduce noise include sound walls, mufflers, and

[[Page 40710]]

sound blankets on all noise-generating equipment. None of these devices 
are being used, and such an acoustic wall is feasible and should be 
required. As such, the IHA fails to use the best available technology 
to reduce the noise impacts on the harbor seals resulting in 
unnecessary Level B harassment.
    Sound could also be mitigated further by moving heavy noise-
generating machinery to the far south side of the site so that in-air 
sound levels are lower; transferring debris to the dump trucks at the 
street level rather than the trucks picking up the material at sand 
level; removing the old tower from the street piece-by-piece and not 
from the beach; as well as pre-fabricating the new lifeguard tower and 
other preparation of materials offsite to decrease on-site demolition 
and construction noise and shorten on-site construction time.
    Response: In the City of San Diego's IHA application, they showed 
that the highest in-air sounds generated by the demolition and 
construction activities (approximately 110 dB) will dissipate to 90 dB 
or lower from the closest point of the building site to the harbor seal 
haul-out area, which is located approximately 10 m away. Therefore, 
additional sound barriers and mufflers are not necessary as the sound 
will not expose harbor seals to 90 dB or higher, which is lower than 
the NMFS's threshold for in-air sound for Level B harassment for harbor 
seals. NMFS has not established a threshold for in-air sound for Level 
A harassment (injury) for harbor seals and does not anticipate it to 
occur during the City of San Diego's demolition and construction 
activities.
    The City of San Diego will require the contractor conducting the 
demolition and construction activities to keep the loudest sound as far 
away as possible from the Children's Pool beach. There will be no 
trucks on the beach, although there is a need for the bobcat loader to 
pick up material directly below the existing building. Every effort 
will be made to keep sound levels as low as possible near the 
Children's Pool beach and on the top level above the beach.
    Comment 7: An individual states that harbor seals use the 
Children's Pool beach differently at different times of the year. 
Detailed knowledge of the behavior of seals using this haul-out site 
and rookery would indicate that lifeguard tower demolition and 
construction activities should take place during daylight between the 
hours of 9 a.m. and 5 p.m. when most, if not all of the harbor seals, 
have departed the beach to avoid the hottest part of the day.
    Response: NMFS disagrees with the individuals recommendations for 
the dates and times that the demolition and construction activities 
should take place. To the maximum extent practicable, the demolition 
and construction activities will be conducted from approximately 8:30 
a.m. to 3:30 p.m. (i.e., daylight hours), during the daily period of 
lowest haul-out occurrence; however, demolition and construction 
activities may be extended 7 a.m. to 7 p.m. to help assure that the 
project is completed during the 2013 demolition and construction 
window. Harbor seals typically have the highest daily or hourly haul-
out period during the afternoon from 3 p.m. to 6 p.m.
    Comment 8: WAN and several individuals state that the proposed IHA 
improperly characterizes the La Jolla stock of Pacific harbor seals as 
habituated to human disturbance (e.g., human presence and associated 
loud noises) and can therefore tolerate additional disturbance. In 
their comments they present studies and video monitoring reports that 
support their assessments that the harbor seals have not been exposed 
to unfamiliar noise from demolition and construction equipment and will 
experience acoustic as well as visual disturbance from these 
activities. They further state that there are very few scientific 
studies regarding the effects of in-air sound on these pinnipeds, and 
that most studies are on the effects of in-water sound (see WAN's full 
public comments online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#iha). They also expressed concern that the demolition 
and construction activities would lead to physiological responses to 
the additional stimuli (see Lindy Weilgart's response on habituation 
and tolerance in WAN's comments). The proposed activity could have the 
potential to displace the harbor seals from this breeding area and the 
applicant has not provided any credible scientific evidence to the 
contrary. Video evidence has shown that pregnant or sick harbor seals 
may not respond to direct harassment, but this does not mean that they 
are habituated to the extent claimed in the proposed IHA.
    WAN has documented human-caused disturbance at the Children's Pool 
site using monitoring information from a continuously-operated 
surveillance camera. They have indicated that there is a significant 
difference between the numbers of harbor seals on the beach with and 
without human presence (see Table 1 of WAN's comments). In recent 
months during the later winter and spring period, they have documented 
numerous flushing incidents due to the presence of human, especially 
when they are on the ocean-side of the rope. WAN anticipates that the 
number of flushing incidents will rise during the summer as well as on 
weekends. Video of one of the human-caused disturbance events can be 
found online at: http://www.youtube.com/watch?v=UWH3z2iP1Ms&feature=youtu.be. More information on these 
incidents can be found in WAN's comments. Also, WAN states that the 
demolition and construction noise can be expected to dramatically 
increase the impacts of humans on the harbor seals and may be 
sufficient cause them to abandon the site. They cite several incidents 
in March and April 2013 where harbor seals left the beach in response 
to levels of unrecorded noise that are presumed to be lower than those 
expected to be generated by the demolition and construction activities. 
Video of one of these disturbance events can be found online at: http://www.youtube.com/watch?v=VRQyn6IOUxY.
    In summary, these harbor seals are not habituated to the point that 
they would be expected to ignore additional human disturbance and there 
is no scientific analysis of the added impact to them of this 
additional human activity, particularly to an entirely new type of 
disturbance. The planned demolition and construction activities will 
exceed any past experience and may lead to adverse effects on this 
population.
    Response: Generally, harbor seals are considered skittish and have 
the tendency to react or flush into the water at low levels of sound 
and/or movements. While a range of behavioral responses can be 
expected, 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 haul-out site and rookery, and 
the harbor seals observed at this location are unusually tolerant to 
the presence of humans, and do not respond in the same manner when 
exposed to stimuli (e.g., laughing, clapping, stomping, climbing, 
snorkeling, swimming, and wading) when compared to the behavior of 
other harbor seals in other areas (Hanan & Associates, 2004, 2011; 
Hanan, 2005).
    Due to this uncertainty about how the harbor seals will 
behaviorally react to in-air sounds and visual cues from the demolition 
and construction activities, the City of San Diego has established a 
monitoring program to document responses and possible impacts. Dr. 
Hanan, the lead PSO, has been observing harbor seals at or near 
Children's Pool and along the west coast of the U.S. since 1979. Based 
on his experience and expertise (court approved on harbor seals at 
Children's

[[Page 40711]]

Pool; Valorie O'Sullivan v. City of San Diego, 2005), he believes that 
when the harbor seals are in attendance at the Children's Pool, they 
display remarkable tolerance and are acclimated to human presence and 
anthropological sounds (Hanan, 2004; Hanan, 2011). Based on previous 
monitoring and observations, these ``urbanized'' animals still alert 
and flush, but much less than ``non-urbanized'' harbor seals at other 
sites and especially remote sites. Larger, older harbor seals seem less 
likely to alert and flush than younger harbor seals, which are more 
active when on land, moving into and out of the water continuously. 
Regarding the issue of potential abandonment, please see the response 
to comment 15 (below) in this document.
    Comment 9: Several individuals state that the proposed IHA does not 
specify what timeframe the harbor seals are to be monitored prior to 
the beginning the demolition and construction activities to assess 
``normal reactions'' often found at the beach. Such monitoring should 
begin weeks before the demolition and construction starts. In addition, 
the City of San Diego should obtain monitoring from WAN to determine a 
baseline for the presence of harbor seals and their distribution to 
analyze impacts from the demolition and construction activities.
    Response: The City of San Diego began visual and acoustic 
monitoring for the demolition and construction activities in early June 
to establish baseline information on the presence and distribution of 
harbor seals and ambient sound levels at the site. To date, Dr. Hanan 
and other PSOs have been onsite monitoring on June 3, 5, 6, 12, and 13, 
2012. Most days and nights they have also been monitoring the 
Children's Pool beach using the WAN webcam.
    Comment 10: WAN and several individuals recommend requiring 
monitoring to continue for 60 to 90 days after the completion of 
demolition and construction activities to determine whether there is 
any long-term displacement from the breeding and resting area. There 
should be monitoring for at least 60 days after the demolition and 
construction activities cease to be certain that the same number of 
harbor seals frequent the beach, as did prior to the start of the 
demolition and construction activities. NMFS fails to require post-
project monitoring for a reasonable period of time to determine if the 
proposed activities have caused displacement from the area and 
abandonment of the site as a rookery. The basis for this is that ``no 
funds were included for this purpose.'' The lack of funding does not 
justify omission of a determination as to what the impacts of the 
project are. The only way to determine if abandonment has occurred or 
if there has been any long-term impact (e.g., a reduction in numbers) 
is to require a 60-day post-project monitoring period and then a 
requirement to put in place a recovery plan, to help re-establish the 
colony should it turn out that the projected lack of impact proves 
false.
    Response: The City of San Diego has modified the monitoring program 
and it will extend for 60 days following the end of the demolition and 
construction activities. The City of San Diego will have a program 
where PSOs that will randomly select a day per week to visit the 
Children's Pool. The monitoring data collected at the Children's Pool 
site will be integrated with 10 randomly selected 30 minute monitoring 
periods using the WAN webcam on three non-observed days via their 
computers. NMFS has included this as a requirement in the IHA. A re-
establishment or recovery plan has not been developed because the City 
of San Diego and NMFS thinks that abandonment by the harbor seals at 
the Children's Pool site is highly unlikely.
    Comment 11: WAN and several individuals state that the monitoring 
plan should include observations of the numbers of people on the beach, 
their location relative to the harbor seals, and any impacts of their 
presence at the time of counting the harbor seals on the beach. The 
presence of the public is a major factor affecting the behavior of the 
harbor seals and a determination should be made as to whether or not 
the harassment is attributable to the presence of the public or to the 
demolition and construction activities. Recording this data is 
necessary in order to understand the influence of people on harassment. 
The noise caused by the presence of humans or the noise caused by 
demolition and construction activities may be additive, synergistic, or 
multiplicative, magnifying the effects of the human disturbance.
    Response: NMFS has included a requirement to this effect in the IHA 
issued to the City of San Diego.
    Comment 12: WAN states that the monitoring proposed is to start 30 
minutes prior to demolition and construction activities and at least 30 
minutes after cessation of the in-air noise-generating activity. The 
monitoring should be conducted at all times (24 hours/7days per week) 
or at least one hour prior to sunrise and one hour after sunset, in 
order to know what impact the demolition and construction may or may 
not have on the harbor seals since humans are also present then. The 
WAM webcam can monitor the Children's Pool beach 24 hours/7 days per 
week and can monitor the number of pinnipeds accessing the beach 
before, during, and after the demolition and construction activities. 
WAN is willing to work with the City of San Diego to employ the 
technical advantage of the surveillance camera during the project. WAN 
has obtained data on harassment, haul-out patterns, presence of humans 
on the beach (both behind and in front of the rope), weather, etc. WAN 
states that there is considerable baseline data available that is not 
being used. The number of harbor seals can vary widely depending on a 
number of factors, weather, tides, and presence of humans. Three to 
five days is an insufficient amount of time to get any statistically 
meaningful baseline data. Since February 2013, monitoring reports have 
been recorded every hour during the day from 6 a.m. to 2 a.m. the next 
morning. This baseline data is backed-up by video recording of the 
entire day (24 hours/7days per week). This extensive data should be 
reviewed and analyzed for use in determining an accurate baseline, 
particularly as it relates to haul-out patterns. To understand a 
complex situation it is necessary to reduce as many variables as 
possible.
    Response: NMFS regulations suggest means of learning of, 
encouraging, and coordinating research opportunities, plans, and 
activities relating to reducing such incidental taking and evaluating 
its effects. NMFS has encouraged the City of San Diego to work with WAN 
to review and analyze any available data to determine baseline 
information as well as evaluate the impacts from the demolition and 
construction activities on the pinnipeds at the Children's Pool. The 
City of San Diego informed NMFS it is open to working with the WAN'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 using the webcam for monitoring 
purposes. The camera is not expected to replace NMFS-qualified PSOs 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 has a limited scope and only shows the Children's Pool beach and 
pinnipeds (usually a specific

[[Page 40712]]

portion of the beach, but not the reef nor nearby beaches).
    Comment 13: WAN asks why have no studies been done to determine the 
extent of the current background noise? Even if such studies show 
background noise is elevated, the sound levels come in major part from 
the ocean itself and from traffic noise above. The demolition and 
construction noise will be in addition to the existing sound sources, 
will be additive, and will be totally different in sound level and 
frequency.
    Response: The City of San Diego will conduct acoustic monitoring by 
PSOs using hand-held digital sound level meters. The acoustic 
monitoring will be conducted at the beach of the haul-out site as well 
as at surrounding areas of the Children's Pool. The acoustic monitoring 
will be conducted before, during, and after demolition and construction 
activities to gather baseline data on background (i.e., ambient) sound 
levels as well as validate predicted sound levels from the equipment 
being used.
    Comment 14: An individual states that it is very important that 
these PSOs must be honest and objective, and not volunteers from any 
animal extremist group. Dr. Hanan, as the lead PSO, is obligated to 
report on all observable reactions. Currently there are independent 
monitors from the animal activist groups at the Children's Pool. They 
may have had good attentions, but members of these organizations are 
biased and not objective, and any comments and information must be 
carefully reviewed for accuracy as to not wrongly influence decision 
makers.
    The SDCOD have objection to some of the oversight of monitoring 
data gathered on the effects of the activities on harbor seals. The 
SDCOD requests the Commission take direct oversight and ensure that the 
research is solely in control of Dr. Hanan without conditions or 
personnel imposed as well as to provide oversight to prevent the 
degradation of science and law, to provide impartial oversight and a 
more neutral body. The personnel choices and monitoring data should not 
be under the control of an agency directly involved in secondary 
purposes as there is motive to skew data. The Commission needs to 
ensure any IHA is administered so the MMPA works per intent with 
undistorted science behind it. This needs to be a condition of the IHA 
being issued by NMFS.
    Response: Dr. Hanan, an independent biologist, will be the lead PSO 
for the mitigation and monitoring program required by the IHA. NMFS-
qualified PSO resumes and curriculum vitaes are reviewed and approved 
by NMFS on a project-by-project basis. NMFS is the Federal agency 
charged with issuing the IHA under the MMPA to the City of San Diego 
and requiring the mitigation, monitoring, and reporting measures. The 
Commission is an independent agency of the U.S. government, established 
under Title II of the MMPA to provide independent oversight of the 
marine mammal conservation policies and programs being carried out by 
Federal regulatory agencies. A description of the seven duties the 
Commission is charged with as well as other responsibilities can be 
found online at: http://www.mmc.gov/about/welcome.shtml#missions. NMFS 
forwarded copies of the IHA application and notice of proposed IHA (78 
FR 25958, May 3, 2013) to the Commission and its Committee of 
Scientific Advisors, and the Commission provided a letter to NMFS on 
May 21, 2013. The Commission recommends that NMFS issue the IHA, 
subject to inclusion of the proposed mitigation and monitoring measures 
(see above in this document).
    Comment 15: WAN and several individuals state that using 12,783 
takes over the entire project period equates to 1,826 takes per month. 
If after at least a month of monitoring the average actual take exceeds 
the predicted number of authorized takes by 25% or results in adverse 
impacts to the colony, the demolition and construction activities 
should be shut-down and the City of San Diego required to work with 
NMFS to develop and implement a revised mitigation plan to reduce the 
further reduce the number of takes and impacts to the expected level.
    The harbor seals do not have any safe places to go if the 
demolition and construction activities cause their abandonment. Given 
anthropogenic impacts to the ocean or other unexpected catastrophic 
events, this fragment of a colony might well be a saving remnant if 
something were to happen to the waters off the other large harbor seal 
colonies of the Channel Islands, Point Mugu or Carpenteria. If it is 
determined that harbor seals have not returned to the Children's Pool 
beach in their pre-project numbers or have abandoned the site, the City 
of San Diego should work with NMFS to develop a program designed to re-
establish the colony at the site.
    Response: Harbor seals observed at the Children's Pool site already 
use nearby haul-out sites at Point Loma and Torrey Pines State Beach 
(at night) in low numbers. Point Mugu, Carpenteria, Goleta, and Point 
Conception are mainland haul-out sites that are used by large numbers 
of harbor seals in the region. These harbor seals may also travel to 
offshore areas such as the Channel Islands (Steward and Yochem, 1994; 
Hanan, 1996; Hanan & Associates, 2011).
    The City of San Diego will be monitoring the harbor seals reactions 
to noise levels, demolition and construction practices, machinery 
placement, and workers in the study. See the ``Monitoring and 
Reporting'' section of this document for more information on the City 
of San Diego's monitoring plan. If monthly monitoring results in 
observations of impacts greater than anticipated, NMFS will work with 
the City of San Diego to develop and implement additional monitoring 
and mitigation measures to further reduce potential impacts from the 
demolition and construction activities. If the City of San Diego 
exceeds their authorized take in the IHA for demolition and 
construction activities at the Children's Pool Lifeguard Station, they 
will re-initiate consultation under the MMPA with NMFS.
    After the first two months of monitoring during demolition and 
construction activities, the City of San Diego will take the mean 
number of observed harbor seals at the Children's Pool in a 24-hour 
period across that two months and compare it to the mean of the lower 
95 percent confidence interval in Figure 1 (see below). If the observed 
mean is lower, the City of San Diego will shut-down demolition and 
construction activities and work with NMFS and other harbor seal 
experts (e.g., Mark Lowry, Dr. Sarah Allen, Dr. Pamela Yochem, and/or 
Dr. Brent Stewart) to develop and implement a revised mitigation plan 
to further reduce the number of takes and potential impacts. Once a 
week every week thereafter, the City of San Diego will take the same 
mean of observed harbor seals across the previous three tide cycles (a 
tide cycle is approximately 2 weeks) and compare it to the 95% lower 
confidence interval in Figure 1 for the same time period. If the 
observed mean is lower, the City of San Diego will shut-down and take 
the action described above. If abandonment of the site is likely, 
monitoring will be expanded away from the Children's Pool to determine 
if animals have been temporarily displaced to haul-out sites in the 
southern California area (e.g., Torrey Pines, Point Loma, etc.). A re-
establishment or recovery plan has not been developed because the City 
of San Diego and NMFS think that abandonment by the harbor seals at the 
Children's Pool site is highly unlikely.
    Comment 16: WAN states that the duration of the demolition and

[[Page 40713]]

construction activities are not short; it is planned for five days per 
week, each and every week for seven months. There should be a follow-up 
study and report submitted at least 60 days after cessation of all 
activities to determine whether or not any long-term or permanent 
impacts have occurred.
    Response: All monitoring data collected before, during, and after 
demolition and construction activities will be included in the 
biological monitoring notes to be submitted. 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.
    Comment 17: WAN states that if there were serious injury or injury, 
an immediate report should also be made to Sea World's stranding 
program so that Sea World might make an attempt at rescuing the injured 
animal for possible rehabilitation.
    Response: Contacting Sea World's stranded animal hotline (1-800-
541-7325) is the standard operating procedure for live stranded animals 
(sick and injured) at Children's Pool. Sea World should also be 
notified for dead stranded pinnipeds so that a necropsy can be 
performed. NMFS should be notified as well, but for immediate response 
purposes Sea World should be contacted first. Dead stranded cetaceans 
should be reported to NMFS Southwest Fisheries Science Center at 858-
546-7162. NMFS has included this as a reporting requirement in the IHA.
    Comment 18: An individual states that given these are wild animals, 
putting out maximum effort to find their own food supply and maintain 
their own health, the duration of the project is very likely to 
outstrip the animal's reserves--stress, lack of adequate haul-out time 
to rest, re-oxygenate, keep up their internal warmth and build up their 
strength, necessary every day. The colony only consists of around 250 
harbor seals, the expected number of ``takings'' could very well cause 
desertion of the site and a high rate of mortality. Thus, recommend a 
change to the IHA to include Level A harassment, as it is a more 
realistic type of ``take.''
    Response: The MMPA defines Level A harassment as ``any act of 
pursuit, torment, or annoyance which has the potential to injure a 
marine mammal or marine mammal stock in the wild.'' As described in 
detail in the Federal Register notice for the proposed IHA (78 FR 
25957, May 3, 2013), as well as in this document, NMFS does not believe 
that the City of San Diego's demolition and construction activities 
would cause injury, serious injury, or mortality to marine mammals, nor 
are those authorized under the IHA. The required monitoring and 
mitigation measures that the City of San Diego would implement during 
the demolition and construction activities would further reduce the 
adverse effects on marine mammals to the lowest levels practicable. 
NMFS anticipates only behavioral disturbance to occur during the 
conduct of the demolition and construction activities at the Children's 
Pool Lifeguard Station.
    Comment 19: WAN and an individual state that NMFS fails to analyze 
that there may be possible long-term impacts on the harbor seal 
population from increased visitors and noise at the new facilities. The 
new facilities could increase the number of visitors to the beach. In 
particular, the new facilities will have bathrooms at the beach level 
(current facilities are at the street level). Since the bathrooms in 
the new lifeguard tower are at beach level, which is closer to the 
harbor seals, it would be important to study the long-term impacts on 
the harbor seals from the increased number of visitors and bathroom 
use. The IHA should include a study to assess the impact of noise from 
increased visitors and bathroom. The IHA should not be approved, as it 
stands, unless these problems are dealt with, as it would not satisfy 
either Federal requirements under the MMPA or the San Diego City 
Municipal Code.
    Response: NMFS does not believe that the future use of the bathroom 
on the beach level when the new facilities are completed to be in the 
scope of this project and IHA request. The City of San Diego has not 
requested take, by Level B harassment, incidental to the use of the 
bathroom by visitors at the new lifeguard station, which has yet to be 
completed, and none has been authorized.
    Comment 20: WAN states that NMFS fails to properly characterize 
this colony of harbor seals as a ``population stock,'' as this 
population of animals is spatially isolated, hauls-out, breeds, and 
mates among its members in this area. NMFS references outdated stock 
assessment reports that were done before the colony at La Jolla was 
well established and no genetic studies have been conducted. This 
distinct group of seals should be characterized as a ``population 
stock'' that meets the definition in the MMPA as it is a distinct group 
with distinct behavioral patterns in this particular location at the 
Children's Pool.
    Response: The MMPA defines the term ``population stock'' or 
``stock'' as a group of marine mammals of the same species or smaller 
taxa in a common spatial arrangement, that interbreed when mature. In 
NMFS's U.S. Pacific marine mammal stock assessments, NMFS considers the 
Pacific harbor seals that occur at the Children's Pool to be part of 
the California stock (NMFS, 2011). Although NMFS knows that geographic 
structure exists along an almost continuous distribution of harbor 
seals from California to Alaska, stock boundaries are difficult to draw 
because any rigid line is (to a greater or lesser extent) arbitrary 
from a biological perspective. 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 161 km (100 miles) south of Punta 
Eugenia. Animals along Baja California are not considered to be 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 (NMFS, 2011). Determination of population structure of 
harbor seals using the area will require further research using a 
combination of scientific techniques that includes morphological and 
genetic analysis (Hanan & Associates, 2011).
    Comment 21: WAN and other individuals state that the take estimates 
in the City of San Diego's IHA application do not meet the ``small 
numbers'' requirement of the MMPA. NMFS has blatantly disregarded the 
MMPA's prohibition on allowing the take of more than small numbers of 
marine mammals. Most egregiously, NMFS estimates that 12,783 takes will 
occur affecting 100% of the La Jolla population stock. NMFS does not 
attempt to explain how its take

[[Page 40714]]

estimates meet the ``small numbers'' requirement. The IHA entirely 
disregards this statutory requirement. NMFS does not attempt to define 
small numbers, nor does it undertake any sort of analysis of what small 
numbers might be, thus violating the MMPA. The number of takes should 
be reduced to a smaller percentage to the population stock as to meet 
the small numbers requirement of the MMPA.
    Response: NMFS has determined, provided that the aforementioned 
mitigation and monitoring measures are implemented, that the impact of 
the City of San Diego conducting demolition and construction activities 
at the Children's Pool Lifeguard Station, 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 3 
species of marine mammals (see Table 2 below for authorized take 
numbers and approximate percentage of best population estimate of 
stock). NMFS has determined that the 12,783 authorized takes (i.e., 
number of exposures) of approximately up to 600 Pacific harbor seals is 
a small number, as it is approximately 1.98% of the estimated best 
population (30,196 animals) in the California stock. The authorized 
takes of California sea lions and northern elephant seals is less than 
0.01 percent of the respective U.S. and California breeding stocks.
    Comment 22: WAN and an individual state that the IHA cannot legally 
be issued under the MMPA, as it does not rely on the best available 
scientific data regarding the impacts from the noise-generated by 
demolition and construction activities on marine mammals and have 
greater than a negligible impact on the stock of Pacific harbor seals, 
especially since the incidence of ``take'' on this population is 100%. 
Throughout the document the IHA fails to provide reference to valid, 
up-to-date studies to justify many of the conclusions. Studies were 
either not cited because there are none, or were cited that had no 
relevance or were so out-dated that they also had no relevance. For the 
most part, conclusions reached were based on conjecture and not on 
evidence. For the IHA to meet the requirements of the MMPA, it must be 
accompanied by accurate and appropriate scientific studies; however, it 
fails to meet that test.
    Response: NMFS and the City of San Diego have used the best 
available data and science regarding the biology of pinnipeds affected 
and the propagation of in-air sounds from the equipment used during 
demolition and construction activities in making the decision on 
whether or not to issue the IHA to the City of San Diego for the 
demolition and construction activities at the Children's Pool Lifeguard 
Station. Regarding exposure of marine mammals to high-level in-air 
sounds, NMFS has established 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 (i.e., seals and sea lions) as a criterion for 
potential Level B harassment (Lawson et al., 2002; Southall et al., 
2007). NMFS has not established criterion for potential Level A 
harassment. The required determinations, mitigation and monitoring 
measures in the IHA are supported by the best available scientific 
information, which has been available for public review. The IHA has 
been designed to ensure that the impacts on the affected species or 
stocks of marine mammals will be negligible and the takings will be at 
the lower level practicable.
    Generally, under the MMPA, NMFS shall authorize the harassment of 
small numbers of marine mammals incidental to an otherwise lawful 
activity, provided NMFS finds that the taking will have a negligible 
impact on the species or stock, will not have an unmitigable adverse 
impact on the availability of the species or stock for subsistence uses 
(where relevant), and if the permissible methods of taking and 
requirements pertaining to the mitigation, monitoring, and reporting of 
such takings are set forth to achieve the least practicable adverse 
impact. 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.'' NMFS believes that the time period of the 
demolition and construction activities, the small footprint of in-air 
sound, the requirement to implement mitigation measures, 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 it will have a negligible impact on the species or stocks 
in the action area. The City of San Diego has applied for an IHA and 
has met the necessary requirements for issuance of an IHA for small 
numbers of marine mammals, by Level B harassment, incidental to the 
demolition and construction activities at the Children's Pool Lifeguard 
Station in La Jolla, California. Therefore, NMFS has issued an IHA to 
the City of San Diego.

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

    Three species of pinnipeds are known to or could occur in the 
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 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 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 
project area.

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

[[Page 40715]]

 
                                                                       Odontocetes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale (Orcinus orca)........  Widely distributed....  354 (354)--West Coast   NL; EN--Southern       NC; D--Southern        Increasing--West
                                                              Transient stock.        resident population.   Resident and AT1       Coast Transient
                                                                                                             Transient              stock.
                                                                                                             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 vitulina  Coastal...............  30,196 (26,667)--       NL...................  NC...................  Increased in
 richardii).                                                  California stock.                                                     California 1981 to
                                                                                                                                    2004.
Northern elephant seal (Mirounga     Coastal, pelagic when   124,000 (74,913)--      NL...................  NC...................  Increasing through
 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.        D....................  Overall increasing,
 jubatus).                                                    Eastern U.S. stock.     stock; EN--Western                            decreasing in
                                                                                      U.S. stock.                                   California.
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 (Arctocephalus    Coastal, shelf........  7,408 (3,028)--Mexico   T....................  D....................  Increasing.
 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.

    The rocks and beaches at or near the Children's Pool in La Jolla, 
California, are almost exclusively Pacific harbor seal hauling-out 
sites. On infrequent 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 that appearances of California sea lions and northern elephant 
seals are infrequent, but not rare at Children's Pool (Yochem and 
Stewart, 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 
kilometers (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 coast and on offshore islands, 
including intertidal sandbars and ledges, rocky shores and islets, and 
beaches (Harvey et al., 1995; Hanan, 1996; Lowry et al., 2008). Of 
these haul-out sites, only 14 locations are rookeries (2 locations have 
multiple sites, for a total of 17 sites) on or near the mainland of 
California. Preferred haul-out sites are those that are protected from 
the wind and waves, and allow access to deep water for foraging (Perrin 
et al., 2008). Harbor seals are one of the most common and frequently 
observed marine mammals along the coastal environment.
    The population of harbor seals has grown off the U.S. west coast 
and has led to new haul-out sites being used in California (Hanan, 
1996). Pacific harbor seals haul-out year-round on nearby beaches and 
rocks (i.e., breakwater ledge/rocks haul-out area, reef haul-out

[[Page 40716]]

area, and Casa Beach haul-out area) below the lifeguard tower at 
Children's Pool. According to Yochem (2005), the Children's Pool beach 
site is used by harbor seals at all hours of the day and at all tides 
with the exception of occasional high tide/high swell events in which 
the entire beach is awash. Harbor seals have been observed hauling-out 
and documented giving birth at the Children's Pool since the 1990's 
(Yochem and Stewart, 1998; Hanan & Associates, 2004). It is the only 
rookery in San Diego County and the only mainland rookery on the U.S. 
west coast between the border of Mexico and Point Mugu in Ventura 
County, California (321.9 km [200 miles]). Also, 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 December through May (Hanan, 2004; 2011). The official 
start to pupping season is December 15th. Females in an advanced stage 
of pregnancy begin to show up on the Children's Pool beach by late 
October to early November. Several studies have identified harbor seal 
behavior and estimated harbor 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.
    In southern California, a considerable amount of information is 
known about the movements and ecology of harbor seals, but population 
structure in the region is not as well known (Stewart and Yochem, 1994, 
2000; Keper et al., 2005; Hanan & Associates, 2011). Linder (2011) 
suggests that this population moves along the California coast and the 
beach at Children's Pool is part of a ``regional network of 
interconnected'' haul-out and pupping sites. Harbor seals often haul-
out in protected bays, inlets, and beaches (Reeves et al., 1992). At 
and near the Children's Pool, harbor seals haul-out on the sand, rocks, 
and breakwater base in numbers of 0 to 15 harbor seals to a maximum of 
about 150 to 200 harbor seals depending on the time of day, season, and 
weather conditions (Hanan & Associates, 2004, 2011; Linder, 2011). 
Based on monitoring from a camera, WAN reports that during the month of 
May 2013, at any given time, up to 302 harbor seals were documented 
resting on the Children's Pool beach with additional harbor seals on 
the rocks and in the water (Wan, personal communication). Almost every 
day, except for weekends, the number of harbor seals on the beach was 
over 250 individuals. During the months of September 2012 to January 
2013, the average number of harbor seals on the beach during hours 
prior to people on the beach or with people behind the rope varied from 
83 to 120 animals. During this same period when there were people on 
the beach with or without the rope, but where people were across the 
rope, the average varied between 7 to 27, which is significantly less. 
The weather (i.e., wind and/or rain) as well as the proximity of humans 
to the beach likely affect the presence of harbor seals on the beach. 
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 the sandy beach just southwest of the Children's Pool. 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 individual 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 Figure 2 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 (Carretta et al., 
2010).

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,

[[Page 40717]]

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[deg] 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), 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

    Richardson et al. (1995) has documented changes in behavior and 
auditory threshold shifts in response to in-air and underwater noise. 
Behavioral responses to loud noises could include startling, alertness, 
changes in physical movement, temporary flushing from the beach, site 
abandonment, and pup abandonment (Allen, 1991; Kastak and Schusterman, 
1996; Kastak et al., 1999; Hanan & Associates, 2011). NMFS and the City 
of San Diego anticipate short-term behavioral impacts on pinnipeds at 
the Children's Pool to include startling, alertness, changes in 
physical movement, temporary flushing from the beach, and general 
diminished use of the haul-out site during the demolition and 
construction activities (Hanan & Associates, 2011).
    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 demolition and construction 
activities of the Children's Pool Lifeguard Station at La Jolla, 
California discussed above. Several species of marine mammals may 
potentially occur in the specified geographic area and thus may be 
affected by the 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. 
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 
acclimated 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 acclimated to 
human presence and associated noises (e.g., nearby vehicles, overhead 
aircrafts, small boats, audio systems, dogs, human activities on foot, 
and human vocalizations) (Hanan & Associates, 2004; 2011). These 
``urbanized'' harbor seals do not exhibit sensitivity at a level 
similar to that noted in harbor seals in some other regions affected by 
human disturbance (Allen et al., 1984; Suryan and Harvey, 1999; Henry 
and Hammil, 2001; Johnson and Acevedo-Gutierrez, 2007; Jansen et al., 
2006; Hanan & Associates, 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. The vast majority 
of these visitors have come to the Children's Pool specifically to 
watch the harbor seals. A maximum of 15 personnel, at any one time, are 
expected to be part of 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 [mu]Pa for harbor seals and at 
or above 100 dB re 20 [mu]Pa for all other pinniped species (Lawson et 
al., 2002; Southall et al., 2007). NMFS does not expect exposure of 
marine mammals to high-level underwater sounds from

[[Page 40718]]

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 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 may be somewhat habituated already.
    Since no demolition or construction activities will be performed 
during the pupping and weaning season (i.e., mid-December through mid-
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 [mu]Pa for harbor seals and at 
or above 100 dB re 20 [mu]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 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 demolition and 
construction activities. Background noise levels near the Children's 
Pool are likely already elevated due to normal activities (e.g., human 
presence and traffic) and the ocean. There have been no studies 
conducted at the Children's Pool regarding background noise in the 
area, but the City of San Diego will conduct pre- and post-acoustic 
monitoring to determine ambient sound levels as well as noise-levels 
generated from the demolition and construction activities. Marine 
mammals at Children's Pool haul-outs are presumably tolerant and 
acclimated to the daily coming and going of humans, automobiles, and to 
other existing activities at the action area. These activities may 
occur at any time of the day for periods of up to several hours at a 
time.
    Hanan & Associates (2004) noted that harbor seals hauled-out at the 
Children's Pool are exposed to the constant presence of humans (on the 
beach, sea wall, lifeguard tower, and sidewalks). 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 demolition and construction activities.
    At the individual level, a newly arrived pinniped (moved in from 
another area) may not have acclimated 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 acclimate and not react to humans (unless close 
to them) or noises at the demolition and construction activities site. 
Observations have shown that loud and startling noises have 
consistently caused some of the harbor seals at the site to flush into 
the water, and generally the harbor seals returned to the haul-out site 
within a short time (Hanan & Associates, 2002; Yochem, 2004; Hanan & 
Associates, 2011).
    Although harbor seals could also be affected by in-air noise and 
activity associated with demolition and construction at the lifeguard 
station, harbor seals at Children's Pool haul-outs are presumably 
acclimated to human activity to some extent due to the daily coming and 
going (i.e., presence) 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 harbor seals could 
show a behavioral response, despite their tolerance 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 (Seal Rock is several hundred yards east 
of the Children's Pool site) during the months when the activity would 
occur. The potentially affected harbor seals include adults of both 
sexes. The harbor seals at Children's Pool may be non-migratory 
residents, exhibiting site fidelity at the haul-out sites. Harbor seals 
often stay within a 50 km (31.1 miles) range of haul-outs, but young 
individuals and adult males have lower site fidelity and dispersal 
rates. Adult females are known to mate and give birth in the area where 
they were born (i.e., high degree of natal philopatry) (Harkonen and 
Harding, 2001; Linder, 2011). Cannon (2009) documented individuals 
moving between haul-out sites at Las Islas Coronados, Mexico and the 
Children's Pool, which are located approximately 50 km apart (Linder, 
2011). However, it is possible that at least some of the harbor seals 
using this site come from moderate distances, as they are known to 
travel distances up to approximately 550 km (297 nmi) for foraging or 
mating purposes (Herder, 1986; Linder, 2011; Hanan & Associates, 2011). 
A study by Greenslade (2002) on diet and foraging ecology suggests that 
the harbor seals at Children's Pool travel some distance away from the 
haul-out site to feed, as the main prey species in their diet (i.e., 
Pacific sanddab and Pacific hake) do not

[[Page 40719]]

occur in the kelp forest near the La Jolla area (Linder, 2011).
    Although harbor seals are tolerant to the presence of humans and 
other visible and non-visible disturbances, they may display a range of 
behaviors when exposed to noise from demolition and construction 
activities. Using the webcam, WAN has documented that when major 
flushing events occur it can take a day or two for them to return in 
the same numbers. Videos of these events can be found online at: http:/
/www.youtube.com/watch?v=UWH3z2iP1Ms&Feature=youtu.be and http://www.youtube.com/watch?v=VRQyn6IOUxY.
    It is likely that many harbor seals in the ``urbanized'' population 
would be affected more than once over the course of the demolition and 
construction period; therefore, it is possible that some measure of 
adaptation or acclimatization would occur on the part of the harbor 
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 the most sensitive breeding phases of harbor seals. Project 
activities producing in-air noise would commence in June, after pupping 
season and when pups have been weaned. Project activities producing in-
air noise are scheduled to terminate by the middle of December, which 
is before adult female harbor seals begin pupping. Visibly pregnant 
females may begin using this site in November, and perhaps as early as 
October.
    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 monitoring and 
mitigation measures described later in this document (see the 
``Mitigation'' and ``Monitoring and Reporting'' sections) which, as 
noted are designed to effect the least practicable adverse impact on 
affected marine mammal species or stocks.

Anticipated Effects on Marine Mammal Habitat

    All demolition and 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 visual perception and potentially dampen acoustic effects on 
pinnipeds. Because the public occasionally harasses the harbor seals 
with various activities, the NMFS-qualified PSO monitoring the site 
will make observations and attempt to distinguish and 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 activities are completed which 
is anticipated to occur before the next pupping season (Hanan & 
Associates, 2011). 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 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 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 project (Hanan & Associates, 
2011). 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.

Mitigation

    In order to issue an 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. In the past, during the pupping 
season, a rope was placed along the upper part of the beach to 
designate how close people can come to the haul-out area. The timeframe 
for the rope has been extended so that it is now present year-round. 
The 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 be 
constructed of plywood, 1.8 to 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

[[Page 40720]]

construction activities for the 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.
    Since the notice of the proposed IHA (78 FR 25958, May 3, 2013), 
NMFS has modified several of the monitoring and mitigation measures 
included in the proposed IHA for practicability reasons, as well as 
included several additional measures. These include changing the 
pupping season from December 15th to May 15th and prohibiting 
demolition and construction activities during this time; extending 
demolition and construction activities from 7 a.m. to 7 p.m. to help 
assure that the project is completed during the 2013 demolition and 
construction window; continuing monitoring for 60 days following the 
end of demolition and construction activities; and triggering a shut-
down of demolition and construction activities in the unexpected event 
of abandonment of the Children's Pool site. The mitigation measure on 
scheduling the heaviest demolition and construction activities (with 
the highest sound levels) during the annual period of lowest haul-out 
occurrence (October to November) was removed as it was included in the 
City of San Diego's Mitigated Negative Declaration when it was 
anticipated that the City of San Diego would obtain an IHA in the 
summer of 2012 and begin demolition and construction activities in the 
fall of 2012. This is no longer practicable due to logistics, 
scheduling and to allow the planned activities to be completed before 
the next pupping season.
    The activity planned 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 (December 15th to May 15th) and for an additional 
four weeks to accommodate lactation and weaning of late season pups. 
Thus, construction shall be prohibited from December 15th to June 1st.
     Demolition and construction activities shall be scheduled, 
to the maximum extent practicable, during the daily period of lowest 
haul-out occurrence, from approximately 8:30 a.m. to 3:30 p.m.; 
however, demolition and construction activities may be extended from 7 
a.m. to 7 p.m. to help assure that the project can be completed during 
the 2013 demolition and construction window. Harbor seals typically 
have the highest daily or hourly haul-out period during the afternoon 
from 3 p.m. to 6 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 m (6 to 8 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 to December 15, 2013. The IHA may extend through June of 
2014 to finish the demolition and construction activities if needed. 
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.

Abandonment

    After the first two months of monitoring during demolition and 
construction activities, the City of San Diego will take the mean 
number of observed harbor seals at the Children's Pool in a 24-hour 
period across that two months and compare it to the mean of the lower 
95 percent confidence interval in Figure 1 (see below). If the observed 
mean is lower, the City of San Diego will shut-down demolition and 
construction activities and work with NMFS and other harbor seal 
experts (e.g., Mark Lowry, Dr. Sarah Allen, Dr. Pamela Yochem, and/or 
Dr. Brent Stewart) to develop and implement a revised mitigation plan 
to further reduce the number of takes and potential impacts. Once a 
week every week thereafter, the City of San Diego will take the same 
mean of observed harbor seals across the previous three tide cycles (a 
tide cycle is approximately 2 weeks) and compare it to the 95% lower 
confidence interval in Figure 1 for the same time period. If the 
observed mean is lower, the City of San Diego will shut-down and take 
the action described above. If abandonment of the site is likely, 
monitoring will be expanded away from the Children's Pool to determine 
if animals have been temporarily displaced to haul-out sites in the 
southern California area (e.g., Torrey Pines, Point Loma, etc.). For 
the purpose of this action, NMFS will consider the Children's Pool site 
to possibly be abandoned if zero harbor seals are present each day 
during the daytime and nighttime hours for at least three tide cycles 
(a tide cycle is approximately 2 weeks), but this cannot be confirmed 
until observed to continue to be zero during a full pupping and molting 
season.

[[Page 40721]]

[GRAPHIC] [TIFF OMITTED] TN08JY13.012

    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 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.
    NMFS has determined that the mitigation measures will have the 
least practicable adverse impact on the species or stocks of marine 
mammals in the action area.
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 
PSOs with high-resolution binoculars and handheld digital sound level 
meters (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 activities as a background and baseline for the project. While no 
specific 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

[[Page 40722]]

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. The 
City of San Diego has modified its monitoring program to include 60 
days of monitoring post-demolition and construction activities. 
Following demolition and construction, the City of San Diego will have 
a program of onsite PSOs that will randomly select a day per week 
integrated with 10 randomly selected 30 minute monitoring periods using 
the WAN webcam on three non-observed days via their computers when the 
WAN webcam is working. During the demolition and construction 
activities, monitoring shall assess behavior and potential behavioral 
responses to demolition and construction noise and activities. Visual 
digital recordings and photographs shall be used to document 
individuals and behavioral responses to demolition and 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 WAN'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 using the webcam for monitoring 
purposes. The camera is not expected to replace NMFS-qualified PSOs at 
the site making accurate counts, measuring sound levels and observing 
the public and the construction, as well as the harbor 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 has a limited scope and only shows the 
Children's Pool beach and pinnipeds (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 action:
    (1) A NMFS-approved or -qualified 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 during demolition and construction 
activities to observe for the presence of marine mammals in the 
vicinity of the specified activity. All such activity will occur during 
daylight hours (i.e., 30 minutes after sunrise and 30 minutes 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;
     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 demolition and construction 
will be included in the biological monitoring notes to be submitted. A 
final report summarizing the demolition and 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 demolition and 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 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 City of San Diego discovers a 
live stranded marine mammal (sick and/or injured) at Children's Pool, 
they shall immediately contact Sea World's stranded animal hotline at 
1-800-541-

[[Page 40723]]

7235. Sea World shall also be notified for dead stranded pinnipeds so 
that a necropsy can be performed. In all cases, NMFS shall be notified 
as well, but for immediate response purposes, Sea World shall be 
contacted first.
    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 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 the City of San Diego 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 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 in 
June 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 40724]]

[GRAPHIC] [TIFF OMITTED] TN08JY13.013

    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 up to 600 individual Pacific harbor seals over the 
duration of the activities. The estimated 600 individual Pacific harbor 
seals will be taken by Level B harassment multiple times during the 
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 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 moving 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 (i.e., if it is from human 
presence, demolition and construction activities, or other).

   Table 2--Summary of the Anticipated Incidental Take by Level B Harassment of Pinnipeds for the City of San
 Diego's Demolition and Construction Activities Generating In-Air Noise at the Children's Pool Lifeguard Station
                                             in La Jolla, California
----------------------------------------------------------------------------------------------------------------
                                                                                                    Approximate
                                                                  Requested take     Estimated     percentage of
                             Species                               authorization     number of       estimated
                                                                     (number of     individuals        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. NMFS has

[[Page 40725]]

encouraged the City of San Diego to work with WAN to review and analyze 
any available data to determine baseline information as well as 
evaluate the impacts from the demolition and construction activities on 
the pinnipeds at the Children's Pool. The City of San Diego is open to 
working with the WAN'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 using the 
webcam for monitoring purposes.

Negligible Impact and Small Numbers Analyses and Determinations

    As a preliminary matter, NMFS typically includes our negligible 
impact and small numbers analyses and determinations under the same 
section heading of our Federal Register notices. Despite co-locating 
these terms, NMFS acknowledges that negligible impact and small numbers 
are distinct standards under the MMPA and treat them as such. The 
analyses presented below do no conflate the two standards; instead, 
each standard has been considered independently and NMFS has applied 
the relevant factors to inform our negligible impact and small numbers 
determinations.
    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 
demolition and construction activities, and none are authorized by 
NMFS. The 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.
    As discussed in detail above, the project scheduling avoids 
sensitive life stages for Pacific harbor seals. Project activities 
producing in-air noise would commence in June and end by December 15th. 
June 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. The December 15th end 
date should provide more protection for the pregnant and nursing harbor 
seals in case they give birth before January 1st; however, most births 
occur after the beginning of January. 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., California stock of 
Pacific harbor seals, U.S. stock of California sea lions, and 
California breeding stock of northern elephant seals), particularly 
given the NMFS and the applicant's plan to implement required 
mitigation, monitoring, and reporting measures to minimize impacts to 
marine mammals.
    For the other marine mammal species that may occur within the 
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 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 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.
    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 up to 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 California, U.S., and California breeding 
stocks. The population estimates for the marine mammal species that may 
be taken by Level B harassment were

[[Page 40726]]

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 
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, visual and acoustic barriers, and the 
addition of a new measure that helps protect against unexpected 
abandonment of the site), 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 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 action 
will not affect ESA-listed species.

National Environmental Policy Act

    For consistency with regulations published by the Council of 
Environmental Quality (CEQ) and NOAA Administrative Order 216-6, 
Environmental Review Procedures for Implementing the National 
Environmental Policy Act, NMFS prepared an EA titled ``Environmental 
Assessment on the Issuance of an Incidental Harassment Authorization to 
the City of San Diego to Take Marine Mammals by Harassment Incidental 
to Demolition and Construction Activities at the Children's Pool 
Lifeguard Station in La Jolla, California.'' After considering the EA, 
the information in the IHA application, and the Federal Register 
notice, as well as public comments, NMFS has determined that the 
issuance of the IHA is not likely to result in significant impacts on 
the human environment and has prepared a Finding of No Significant 
Impact (FONSI). An Environmental Impact Statement is not required and 
will not be prepared for the action.

Authorization

    NMFS has issued an IHA to the City of San Diego for the take, by 
Level B harassment, of small numbers of marine mammals incidental to 
demolition and construction activities at the Children's Pool Lifeguard 
Station in La Jolla, California, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated.

    Dated: July 2, 2013.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2013-16263 Filed 7-5-13; 8:45 am]
BILLING CODE 3510-22-P