[Federal Register Volume 80, Number 37 (Wednesday, February 25, 2015)]
[Notices]
[Pages 10060-10066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03850]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD444


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to San Francisco Bay Area Water 
Emergency Transportation Authority Central Bay Operations and 
Maintenance Facility Project in Alameda, California

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

ACTION: Notice; issuance of an incidental take authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the San Francisco Bay Area 
Water Emergency Transportation Authority (WETA) to take, by harassment, 
small numbers of two species of marine mammals incidental to pile 
driving and removal associated with the Central Bay Operations and 
Maintenance Facility Project in the City of Alameda, California, 
between December 1, 2015, through November 30, 2016.

DATES: Effective December 1, 2015, through November 30, 2016.

ADDRESSES: A copy of the application containing a list of the 
references used in this document, NMFS's Environmental Assessment (EA), 
Finding of No Significant Impact (FONSI), and the IHA may be obtained 
visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
    Documents cited in this notice may be viewed, by appointment, 
during regular business hours, at 1315 East West Highway, Silver 
Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    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].

Summary of Request

    On April 9, 2014, NMFS received an application from WETA for the 
taking of marine mammals incidental to the construction of a Central 
Bay Operations and Maintenance Facility (Project). The purpose of the 
Project is to serve as the central San Francisco Bay (Bay) base for 
WETA's ferry fleet. After NMFS provided comments on the draft IHA 
application, WETA submitted a revised IHA application on May 15, 2014. 
NMFS determined that the application was adequate and complete on July 
31, 2014. No changes was made for the proposed WETA's construction 
Project as described in the proposed IHA except the Project duration 
was changed to December 1, 2015, through November 30, 2016, from the 
original June 15 through October 15, 2014, due to funding and other 
constraints. Please refer to Federal Register notice for the proposed 
IHA for a detailed description of the project activities.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to WETA was published in 
the Federal Register on September 17, 2014 (79 FR 55479). That notice 
described, in detail, WETA's activity, the marine mammal species that 
may be affected by the activity, and the anticipated effects on marine 
mammals. During the 30-day public comment period, NMFS received 
comments from the Marine Mammal Commission (Commission), the Sierra 
Club, the San Francisco Bay Conservation and Development Commission 
(BCDC), and 40 private citizens.
    All comments specific to WETA's application that address the 
statutory and regulatory requirements or findings NMFS must make to 
issue an IHA are addressed in this section of the Federal Register 
notice.
    Comment 1: The Commission recommends NMFS issue the IHA to WETA, 
subject to inclusion of the proposed mitigation and monitoring measures 
described in the proposed IHA. In addition, the Commission recommends 
that NMFS only authorize in-season adjustments in the sizes of the 
exclusion and/or disturbance zones (zones of influence) if the size(s) 
of the estimated zones are determined to be too small.

[[Page 10061]]

    Response: NMFS agrees with the Commission's recommendation and has 
issued the IHA with mitigation and monitoring measures described below 
in this document, with the requirement that the exclusion and/or zones 
of influence be adjusted only of the size(s) of the estimated zones are 
determined to be too small.
    Comment 2: Citing WETA's permit application to BCDC to construct 
the Central Bay Operations and Maintenance Facility Project, BCDC 
points out that an abandoned small craft floating dock located at the 
proposed project site that harbor seals use as a haul-out site, would 
be removed for the construction. BCDC states that there are relatively 
few haul-out locations in the Bay for harbor seals, and BCDC is 
concerned that removal of a haul-out location may result in harmful 
impacts to wildlife. The Sierra Club and 40 private citizens also have 
concerns about the loss of a harbor seal haul-out due to the removal of 
the floating dock.
    BSDC recommends that NMFS review the potential habitat impacts 
associated with removal of these harbor seal haul-out locations, 
including suggestions for mitigation and monitoring, where appropriate, 
as part of the IHA application for the project.
    Response: NMFS was not aware this issue during its initial analysis 
of potential impacts to the loss of one harbor seal haul-out site as a 
result of the proposed WETA construction project in the Bay. Therefore, 
the potential impact of marine mammal habitat did not address this in 
the Federal Register (79 FR 55479; September 17, 2014) for the proposed 
IHA. Subsequently, NMFS conducted further investigation and worked with 
NMFS West Coast Regional Office to assess the potential impacts to 
harbor seal haul-out and habitat in general in the Bay.
    The harbor seal haul-out site that would be affected is a small 
craft dock located at the project site and was abandoned by the Navy 
when it vacated the Naval Air Station-Alameda in 1997. The unmaintained 
dock has been deteriorating slowly over the last 17 years and the 
deterioration has appeared to be accelerating in the last five years. 
In 2010, the portion connecting the floating dock to land broke off and 
sank, leaving remnant parts of the floating dock isolated from land. 
Since 2010, additional remnant parts of the marina have also been lost. 
During this period of time harbor seals have been opportunistically 
using the dock for haul-out purposes. At present, seals have been 
observed by local residents hauling out on the portion of the dock that 
is furthest from shore.
    It is observed that on an average, about 10 to 20 harbor seals use 
the floating dock as haul-out periodically. Although during the spring 
of 2014, one pup was observed reared at the floating dock, the site is 
not a known breeding area for harbor seal. Because the dock has been in 
a gradual state of decay since the closure of the naval base and will 
likely continue to fall apart, the haul-out area on the dock provided 
for harbor seals is expected to decrease and eventually disappear.
    Finally, several nearby haul-out sites are available in the Bay 
that are available to resident harbor seals in the area. These areas 
include the tip of Breakwater Island (1 mile from the WETA project 
site) and the haul-out at Yerba Buena Island (4 to 5 miles from the 
WETA project site) which is identified as one of the five major haul-
out sites for harbor seals in the San Francisco Bay (Gibble 2011).
    Therefore, the removal of the remnant abandoned dock would have 
negligible impact to harbor seal habitat in the proposed WETA 
construction site.
    NMFS has thoroughly reviewed WETA's IHA application, including the 
proposed mitigation and monitoring measures to reduce potential impacts 
from the construction activities. These mitigation and monitoring 
measures include using noise attenuation devices for impact pile 
driving, power down/shutdown of pile driving hammer if a marine mammal 
is observed approaching the exclusion zone, and monitoring the 
exclusion zones and zones of influence. Detailed description of these 
monitoring and mitigation measures and NMFS analysis is provided in the 
Federal Register (79 FR 55479; September 17, 2014) for the proposed 
IHA, therefore, it is not repeated here.
    Comment 3: The Sierra Club and several private citizens recommend 
that NMFS requires WETA to construct a new haul-out dock nearby to 
compensate and mitigate the loss of harbor seal haul-out, if the 
current old floating dock is to be removed.
    Response: NMFS does not consider building an artificial harbor seal 
haul-out is a good conservation measure to compensate for the loss of 
the old floating dock that is being used as a haul-out by 10-20 harbor 
seals. As the Sierra Club also stated in its comment, ``[i]n the case 
of the WETA ferry facility project, it is not a traditional natural 
shoreline that will be disturbed or destroyed.'' The floating dock 
proposed to be removed is a manmade structure that is bound to 
disappear as it deteriorates and falls apart. To build another new 
structure without maintenance will likely have the same issue in the 
near future. Therefore, NMFS considers it better conservation practice 
not to construct a new structure just to replace the current 
deteriorating artificial one.

Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction most likely to 
occur in the proposed construction area include Pacific harbor seal 
(Phoca vitulina richardsi) and California sea lion (Zalophus 
californianus). Although harbor porpoise (Phocoena phocoena), killer 
whale (Orcinus orca), and gray whale (Eschrichtius robustus) have been 
sighted near the vicinity of the proposed construction area, their 
presence at the activity area is considered unlikely, because the 
proposed construction area is not typical habitat for these species. 
The southern sea otter (Enhydra lutris) also may occur in the proposed 
construction area, but that species is managed by the U.S. Fish and 
Wildlife Service and is not considered further in this proposed IHA 
notice. A list of the marine mammal species under NMFS jurisdiction and 
their abundance and Endangered Species Act (ESA) status is provided in 
Table 1.
    Additional information on the marine mammal species found in 
California waters can be found in Caretta et al. (2013), which is 
available at the following URL: http://www.nmfs.noaa.gov/pr/sars/pdf/po2012.pdf, and in the Federal Register notice (79 FR 55479) for the 
proposed IHA.

[[Page 10062]]



  Table 1--List of Marine Mammal Species Under NMFS Jurisdiction That Occur in the Vicinity of the WETA Central
                              Bay Operations and Maintenance Facility Project Area
----------------------------------------------------------------------------------------------------------------
           Common name               Scientific name           Stock              ESA Status         Abundance
----------------------------------------------------------------------------------------------------------------
California sea lion..............  Zalophus             U.S................  Not listed.........         296,750
                                    californianus.
Harbor seal......................  Phoca vitulina       California.........  Not listed.........          30,196
                                    richardsi.
----------------------------------------------------------------------------------------------------------------

Potential Effects of the Specified Activity on Marine Mammals and 
Marine Mammal Habitat

    The primary potential impacts to marine mammals and marine mammal 
habitat are associated with elevated sound levels, but the project may 
also result in additional effects to marine mammal prey species and 
short-term, local water turbidity caused by in-water construction due 
to pile removal and pile driving. These potential effects are discussed 
in detail in the Federal Register notice for the proposed IHA and are 
not repeated here. The potential affected habitat on harbor seal haul-
out was not discussed in the proposed IHA because NMFS was not aware of 
that issue at the time. An analysis of the potential effect on the 
removal of a harbor seal haul-out is provided below.
    The harbor seal haul-out site that would be affected is a small 
craft dock located at the project site and was abandoned by the Navy 
when it vacated the Naval Air Station-Alameda in 1997. The unmaintained 
dock has been deteriorating slowly over the last 17 years and the 
deterioration has appeared to be accelerating in the last five years. 
Later in 2010, the portion connecting the floating dock to land broke 
off and sank, leaving remnant parts of the floating dock isolated from 
land. Since 2010, additional remnant parts of the marina have also been 
lost. During this period of time harbor seals have been 
opportunistically using the dock for haul-out purposes. At present, 
seals have been observed by local residents hauling out on the portion 
of the dock that is furthest from shore.
    It is observed that on an average, about 10 to 20 harbor seals use 
the floating dock as haul-out periodically. Although during the spring 
of 2014, one pup was observed reared at the floating dock, the site is 
not a known breeding area for harbor seal. Because the dock has been in 
a gradual state of decay since the closure of the naval base and will 
likely continue to fall apart, the haul-out area on the dock provided 
for harbor seals is expected to decrease and eventually disappear.
    Finally, several nearby haul-out sites are available in the Bay 
that are available to resident harbor seals in the area. These areas 
include the tip of Breakwater Island (1 mile from the WETA project 
site) and the haul-out at Yerba Buena Island (4 to 5 miles from the 
WETA project site) which is identified as one of the five major haul-
out sites for harbor seals in the San Francisco Bay (Gibble 2011).
    Therefore, the removal of the remnant abandoned dock would have 
negligible impact to harbor seal habitat in the proposed WETA 
construction site.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible 
methods of taking pursuant to such activity, and other means of 
effecting the least practicable 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 (where relevant).
    For WETA's proposed Central Bay Operations and Maintenance Facility 
Project, NMFS required the following mitigation measures to minimize 
the potential impacts to marine mammals in the Project vicinity. The 
primary purposes of these mitigation measures are to minimize sound 
levels from the activities, to monitor marine mammals within designated 
zones of influence corresponding to NMFS' current Level B harassment 
thresholds and, if marine mammals with the ZOI appear disturbed by the 
work activity, to initiate immediate shutdown or power down of the 
piling hammer, making it very unlikely potential injury or hearing 
impairment to marine mammals would occur and ensuring that Level B 
behavioral harassment of marine mammals would be reduced to the lowest 
level practicable.

Use of Noise Attenuation Devices

    Noise attenuation systems (i.e., bubble curtains) will be used 
during all impact pile driving of steel piles to dampen the acoustic 
pressure and reduce the impact on marine mammals. By reducing 
underwater sound pressure levels at the source, bubble curtains would 
reduce the area over which Level B harassment would occur, thereby 
potentially reducing the numbers of marine mammals affected. In 
addition, the bubble curtain system would reduce sound levels below the 
threshold for injury (Level A harassment), and thus eliminate the need 
for an exclusion zone for Level A harassment.

Time Restrictions

    Work would occur only during daylight hours, when visual monitoring 
of marine mammals can be conducted.
    In addition, all in-water construction will be limited to the 
period between August 1 and November 30, 2016.

Establishment of Harassment Zones of Influence

    Before the commencement of in-water pile driving activities, WETA 
shall establish Level B behavioral harassment zones of influence (ZOIs) 
where received underwater sound pressure levels (SPLs) are higher than 
160 dB (rms) and 120 dB (rms) re 1 [mu]Pa for impulse noise sources 
(impact pile driving) and non-impulses noise sources (vibratory pile 
driving and mechanic dismantling), respectively. The ZOIs delineate 
where Level B harassment would occur. Because of the relatively low 
source levels from vibratory pile driving and from impact pile driving 
with air bubble curtains, there will be no area where the noise level 
would exceed the threshold for Level A harassment for pinnipeds, which 
is 190 dB (rms) re 1 [mu]Pa. The modeled maximum isopleths for ZOIs are 
listed in Table 2.

[[Page 10063]]



           Table 2--Modeled Level B Harassment Zones of Influence for Various Pile Driving Activities
----------------------------------------------------------------------------------------------------------------
                                                                             Distance to 120    Distance to 160
            Pile driving methods                 Pile material and size       dB re 1 [mu]Pa     dB re 1 [mu]Pa
                                                                                (rms) (m)          (rms) (m)
----------------------------------------------------------------------------------------------------------------
Impact pile driving with air bubble curtain  30'' epoxy coated steel piles                 NA                250
                                             24'' epoxy coated steel piles                 NA                185
                                             18'' epoxy coated steel piles                 NA                 93
Vibratory pile driving.....................  18'' plastic fender piles....              2,154                 NA
----------------------------------------------------------------------------------------------------------------

    In addition, although Level A harassment and injury by noise are 
not expected to occur due to implementation of noise attenuation 
devices and vibratory pile driving, a minimum shutdown zone of 10 m 
will be established during all pile driving and removal activities, 
regardless of the estimated zone. These precautionary measures are 
intended to prevent the already unlikely possibility of physical 
interaction with construction equipment and to establish a 
precautionary minimum zone with regard to acoustic effects.
    Once the underwater acoustic measurements are conducted during 
initial test pile driving, WETA shall adjust the sizes of the exclusion 
zones and ZOIs only if the measured exclusion zones and ZOIs are larger 
than modeled zones. These zones will be monitored as described under 
the Proposed Monitoring section below.

Soft Start

    A ``soft-start'' technique is intended to allow marine mammals to 
vacate the area before the pile driver reaches full power. Whenever 
there has been downtime of 30 minutes or more without pile driving, the 
contractor will initiate the driving with ramp-up procedures described 
below.
    For vibratory hammers, the contractor will initiate the driving for 
15 seconds at reduced energy, followed by a 1-minute waiting period. 
This procedure shall be repeated two additional times before continuous 
driving is started. This procedure would also apply to vibratory pile 
extraction.
    For impact driving, an initial set of three strikes would be made 
by the hammer at 40 percent energy, followed by a 1-minute waiting 
period, then two subsequent three-strike sets at 40 percent energy, 
with 1-minute waiting periods, before initiating continuous driving.

Shutdown Measures

    WETA shall implement shutdown measures for pile driving or pile 
removal activities if a marine mammal is sighted within or is about to 
enter the 10 m exclusion zone.
    In addition, WETA shall discontinue pile driving or pile removal 
activities if a marine mammal within a ZOI appears disturbed by the 
work activity. Work may not resume until the animal is seen to leave 
the ZOI or 30 minutes have passed since the disturbed animal was last 
sighted.
    Furthermore, for in-water heavy machinery work with the potential 
to affect marine mammals (other than pile driving), if a marine mammal 
comes within 10 m, operations shall cease until the animal has left the 
shutdown zone or 15 minutes has passed. Heavy machinery work could 
include setting the pile and removal of the pile from the water column/
substrate via a crane (i.e., dead pull).
    Finally, if any marine mammal species not authorized for take are 
encountered during pile driving or removal and are likely to be exposed 
to sound pressure levels (SPLs) greater than or equal to 160 dB re 1 
[mu]Pa (rms) for impact pile driving or greater than or equal to 120 dB 
re 1 [mu]Pa (rms) for vibratory driving or removal, then the Holder of 
this IHA must cease those activities prior to the animal entering the 
applicable Level B zone to avoid take. Activities cannot commence until 
the animal has left the Level B zone.

Mitigation Conclusions

    NMFS has carefully evaluated the mitigation measures and considered 
a range of other measures in the context of ensuring that NMFS 
prescribes the means of effecting the least practicable impact on the 
affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures included consideration of the 
following factors in relation to 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.
     The practicability of the measure for applicant 
implementation.
    Any mitigation measure(s) prescribed by NMFS should be able to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (1) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals 2, 3, and 4 may contribute to this goal).
    (2) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to received 
levels of pile driving and pile removal or other activities expected to 
result in the take of marine mammals (this goal may contribute to 1, 
above, or to reducing harassment takes only).
    (3) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to received levels of pile driving and pile removal, or other 
activities expected to result in the take of marine mammals (this goal 
may contribute to 1, above, or to reducing harassment takes only).
    (4) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to received 
levels of pile driving, or other activities expected to result in the 
take of marine mammals (this goal may contribute to a, above, or to 
reducing the severity of harassment takes only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying special attention to the food base, activities that 
block or limit passage to or from biologically important areas, 
permanent destruction of habitat, or temporary destruction/disturbance 
of habitat during a biologically important time.
    (6) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least

[[Page 10064]]

practicable impact on marine mammals species or stocks and their 
habitat, paying particular attention to rookeries, mating grounds, and 
areas of similar significance.

Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth, ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs 
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 proposed action area. 
WETA submitted a marine mammal monitoring plan as part of the IHA 
application. It can be found at http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The plan may be modified or supplemented based on 
comments or new information received from the public during the public 
comment period.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (1) An increase in the probability of detecting marine mammals, 
both within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    (2) An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of pile driving that we associate with 
specific adverse effects, such as behavioral harassment, TTS, or PTS;
    (3) An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
    [ssquf] Behavioral observations in the presence of stimuli compared 
to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
    [ssquf] Distribution and/or abundance comparisons in times or areas 
with concentrated stimuli versus times or areas without stimuli;
    (4) An increased knowledge of the affected species; and
    (5) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.

Monitoring Measures

    WETA shall employee NMFS-approved protected species observers 
(PSOs) to conduct marine mammal monitoring for its Central Bay 
Operations and Maintenance Facility Project. The PSOs will observe and 
collect data on marine mammals in and around the project area for 30 
minutes before, during, and for 30 minutes after all pile removal and 
pile installation work. If a PSO observes a marine mammal within a ZOI 
that appears to be disturbed by the work activity, the PSO will notify 
the work crew to initiate shutdown measures.
    Monitoring of marine mammals around the construction site shall be 
conducted using high-quality binoculars (e.g., Zeiss, 10 x 42 power). 
Marine mammal visual monitoring shall be conducted from the best 
vantage point available, including the pier, breakwater, and adjacent 
docks within the harbor, to maintain an excellent view of the ZOIs and 
adjacent areas during the survey period. Monitors would be equipped 
with radios or cell phones for maintaining contact with work crews.
    Data collection during marine mammal monitoring will consist of a 
count of all marine mammals by species, a description of behavior (if 
possible), location, direction of movement, type of construction that 
is occurring, time that pile replacement work begins and ends, any 
acoustic or visual disturbance, and time of the observation. 
Environmental conditions such as weather, visibility, temperature, tide 
level, current, and sea state would also be recorded.

Reporting Measures

    WETA would be required to submit weekly monitoring reports to NMFS 
that summarize the monitoring results, construction activities, and 
environmental conditions.
    A final monitoring report would be submitted to NMFS within 90 days 
after completion of the construction work. This report would detail the 
monitoring protocol, summarize the data recorded during monitoring, and 
estimate the number of marine mammals that may have been harassed. NMFS 
would have an opportunity to provide comments on the report, and if 
NMFS has comments, WETA would address the comments and submit a final 
report to NMFS within 30 days.
    In addition, NMFS would require WETA to notify NMFS' Office of 
Protected Resources and NMFS' Stranding Network within 48 hours of 
sighting an injured or dead marine mammal in the vicinity of the 
construction site. WETA shall provide NMFS with the species or 
description of the animal(s), the condition of the animal(s) (including 
carcass condition, if the animal is dead), location, time of first 
discovery, observed behaviors (if alive), and photo or video (if 
available).
    In the event that WETA finds an injured or dead marine mammal that 
is not in the vicinity of the construction area, WETA would report the 
same information as listed above to NMFS as soon as operationally 
feasible.

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].
    As discussed above, in-water pile removal and pile driving 
(vibratory and impact) generate loud noises that could potentially 
harass marine mammals in the vicinity of WETA's proposed Central Bay 
Operations and Maintenance Facility Project.
    Currently, NMFS uses 120 dB re 1 [mu]Pa and 160 dB re 1 [mu]Pa at 
the received levels for the onset of Level B harassment from non-
impulse (vibratory pile driving and removal) and impulse sources 
(impact pile driving) underwater, respectively. Table 3 summarizes the 
current NMFS marine mammal take criteria.

[[Page 10065]]



   Table 3--Current Acoustic Exposure Criteria for Non-Explosive Sound
                               Underwater
------------------------------------------------------------------------
           Criterion             Criterion definition       Threshold
------------------------------------------------------------------------
Level A Harassment (Injury)...  Permanent Threshold     180 dB re 1
                                 Shift (PTS) (Any        [mu]Pa
                                 level above that        (cetaceans) 190
                                 which is known to       dB re 1 [mu]Pa
                                 cause TTS).             (pinnipeds)
                                                         root mean
                                                         square (rms).
Level B Harassment............  Behavioral Disruption   160 dB re 1
                                 (for impulse noises).   [mu]Pa (rms).
Level B Harassment............  Behavioral Disruption   120 dB re 1
                                 (for non-impulse        [mu]Pa (rms).
                                 noise).
------------------------------------------------------------------------

    As explained above, ZOIs will be established that encompass the 
areas where received underwater SPLs exceed the applicable thresholds 
for Level B harassment. There will not be a zone for Level A harassment 
in this case, because the bubble curtain system will keep all 
underwater noise below the threshold for Level A harassment.
    Incidental take is estimated for each species by estimating the 
likelihood of a marine mammal being present within a ZOI during active 
pile removal or driving. Expected marine mammal presence is determined 
by past observations and general abundance near the project area during 
the construction window. Typically, potential take is estimated by 
multiplying the area of the ZOI by the local animal density. This 
provides an estimate of the number of animals that might occupy the ZOI 
at any given moment. However, this type of calculation is not 
applicable in this case, because the ZOI will be relatively small and 
there is no specific local animal density for harbor seals or 
California sea lions. Based on observational data, the maximum number 
of harbor seals observed along the closest breakwater near the project 
vicinity ranges from 10 to 20 individuals. Observational data on 
California sea lions are not available, but they are generally less 
abundant than harbor seals; therefore, the number of harbor seals will 
be used to estimate impacts for both species.
    While it is unlikely that 10 to 20 individuals would be present 
inside the ZOI at any one time, given the distance from the nearest 
haul-out site, as a worst-case, this analysis assumes that up to 20 
individuals might be present.
    For the Project, the total number of pile removal hours is 
estimated to not exceed 18 hours over 3 days, and the total number of 
pile driving hours is estimated to not exceed 60 hours over 10 days. 
Therefore, the estimated total number of days of activities that might 
impact marine mammals is 13 days. For the exposure estimate, it is 
assumed that the highest count of harbor seals observed, and the same 
number of California sea lions, will be foraging within the ZOI and be 
exposed multiple times during the Project.
    The calculation for marine mammal exposures for this Project is 
estimated by:
    Exposure estimate = N * (10 days of pile driving activity + 3 days 
of pile removal activity), where:
    N = # of animals potentially present = 20.
    This formula results in the following exposure estimate:
    Exposure estimate = 20 animals * 13 days = 260 animals.
    Therefore, WETA is requesting authorization for Level B acoustical 
harassment of up to 260 harbor seals and up to 260 California sea lions 
due to pile removal and driving. A summary of the take estimates and 
the proportions of the stocks potentially affected is provided in Table 
4.


                                  Table 4--Summary of Potential Marine Mammal Takes and Percentages of Stocks Affected
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                              Percentage of
                                            Estimated density       Estimated take by  Abundance of stock   stock potentially       Population trend
                                                                   level B harassment                           affected
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion...................  NA.......................                 260             396,750               0.06%  Stable.
Harbor seal...........................  NA.......................                 260              30,196               0.86%  Stable.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Analysis and Determinations

Negligible Impact

    Negligible impact is ``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'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, and effects on habitat.
    WETA's proposed Central Bay Operations and Maintenance Facility 
Project would involve pile removal and pile driving activities. 
Elevated underwater noises are expected to be generated as a result of 
these activities; however, these noises are expected to result in no 
mortality or Level A harassment and limited, if any, Level B harassment 
of marine mammals. WETA would use noise attenuation devices (i.e., 
bubble curtains) during the impact pile driving, thus eliminating the 
potential for injury (including PTS) and TTS from impact driving. For 
vibratory pile removal and pile driving, noise levels are not expected 
to reach the level that may cause TTS, injury (including PTS), or 
mortality to marine mammals. Therefore, NMFS does not expect that any 
animals would experience Level A harassment (including injury or PTS) 
or Level B harassment in the form of TTS from being exposed to in-water 
pile removal and pile driving associated with WETA's construction 
project.
    In addition, WETA's proposed activities are localized and of short 
duration. The entire project area is limited to WETA's Central Bay 
Operations and Maintenance Facility near Pier 3 in the City of Alameda. 
The entire Project would involve the

[[Page 10066]]

removal of 35 existing concrete piles and installation of a total of 61 
steel piles ranging from 18 inches to 30 inches in diameter and 24 
plastic piles of 18-inch diameter. The duration for pile removal is 
expected to be fewer than three days and the duration for pile driving 
is expected to be fewer than 10 days, for a total of 13 days of 
activity. The duration for removing each pile would be about 30 
minutes, and the duration for driving each pile would be about 10 to 30 
minutes for impact steel pile driving and about 10 to 20 minutes for 
plastic vibratory pile driving. These low-intensity, localized, and 
short-term noise exposures may cause brief startle reactions or short-
term behavioral modification by the animals. These reactions and 
behavioral changes are expected to subside quickly when the exposures 
cease. Moreover, the proposed mitigation and monitoring measures are 
expected to reduce potential exposures and behavioral modifications 
even further. Additionally, no important feeding and/or reproductive 
areas for marine mammals are known to be near the proposed action area. 
Therefore, the take resulting from the proposed Central Bay Operations 
and Maintenance Project is not reasonably expected to, and is not 
reasonably likely to, adversely affect the marine mammal species or 
stocks through effects on annual rates of recruitment or survival.
    The Project also is not expected to have significant adverse 
effects on affected marine mammals' habitat, as analyzed in detail in 
the ``Anticipated Effects on Marine Mammal Habitat'' section in the 
Federal Register notice (79 FR 55479; September 17, 2014). The project 
activities would not modify existing marine mammal habitat. The 
activities may cause some fish to leave the area of disturbance, thus 
temporarily impacting marine mammals' foraging opportunities in a 
limited portion of the foraging range, but because of the short 
duration of the activities and the relatively small area of the habitat 
that may be affected, the impacts to marine mammal habitat are not 
expected to cause significant or long-term negative consequences.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS finds that the total marine mammal take from 
WETA's Central Bay Operations and Maintenance Facility Project will 
have a negligible impact on the affected marine mammal species or 
stocks.

Small Number

    Based on analyses provided above, it is estimated that 
approximately 260 California sea lions and 260 Pacific harbor seals 
could be exposed to received noise levels that could cause Level B 
behavioral harassment from the proposed construction work at the WETA 
Central Bay Operations and Maintenance Facility in Alameda, CA. These 
numbers represent approximately 0.06% and 0.86% of the stocks and 
populations of these species that could be affected by Level B 
behavioral harassment, respectively (see Table 4 above), which are 
small percentages relative to the total populations of the affected 
species or stocks.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, which are expected to reduce the number of marine mammals 
potentially affected by the proposed action, NMFS finds that small 
numbers of marine mammals will be taken relative to the populations of 
the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no subsistence uses of marine mammals in the proposed 
project area, and thus no subsistence uses impacted by this action. 
Therefore, NMFS has determined that the total taking of affected 
species or stocks would not have an unmitigable adverse impact on the 
availability of such species or stocks for taking for subsistence 
purposes.

Endangered Species Act (ESA)

    No species listed under the ESA are expected to be affected by 
these activities. Therefore, NMFS has determined that a section 7 
consultation under the ESA is not required.

National Environmental Policy Act (NEPA)

    NMFS prepared an Environmental Assessment (EA) and analyzed the 
potential impacts to marine mammals that would result from WETA's 
Central Bay Operations and Maintenance Facility project in Alameda, 
California. Therefore, A Finding of No Significant Impact (FONSI) was 
issued for this action. A copy of the EA and FONSI is available upon 
request.

Authorization

    NMFS has issued an IHA to USCG for the potential harassment of 
small numbers of marine mammal species incidental to its waterfront 
repair project at Station Monterey in California, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: February 19, 2015.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2015-03850 Filed 2-24-15; 8:45 am]
BILLING CODE 3510-22-P