[Federal Register Volume 76, Number 223 (Friday, November 18, 2011)] [Notices] [Pages 71517-71535] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 2011-29886] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XA628 Takes of Marine Mammals During Specified Activities; Blasting Operations by the U.S. Army Corps of Engineers During the Port of Miami Construction Project in Miami, FL AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; proposed Incidental Harassment Authorization; request for comments. ----------------------------------------------------------------------- SUMMARY: NMFS has received an application from the U.S. Army Corps of Engineers (ACOE) for an Incidental Harassment Authorization (IHA) to take small numbers of marine mammals, by harassment, incidental to blasting operations in the Port of Miami in Miami, Florida. NMFS has reviewed the application, including all supporting documents, and determined that it is adequate and complete. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to ACOE to incidentally harass, by Level B harassment only, marine mammals during the specified activity. DATES: Comments and information must be received no later than December 19, 2011. ADDRESSES: Comments on the application should be addressed to P. Michael Payne, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is [email protected]. NMFS is not responsible for email comments sent to addresses other than the one provided here. Comments sent via email, including all attachments, must not exceed a 10-megabyte file size. All comments received are a part of the public record and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. A copy of the application containing a list of the references used in this document may be obtained by writing to the above address, telephoning the contact listed here (see FOR FURTHER INFORMATION CONTACT) or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. This project was previously evaluated by the ACOE under an Environmental Impact Statement (EIS) and a Record of Decision (ROD) for the proposed project was signed on May 22, 2006, which is also available at the same Internet address. Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address. FOR FURTHER INFORMATION CONTACT: Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, (301) 427-8401. SUPPLEMENTARY INFORMATION: Background Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1361(a)(5)(D)) directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals of a species or population stock, by United States citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. Authorization for the incidental taking of small numbers of marine mammals shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The authorization must set forth the permissible methods of taking, other means of effecting the least practicable adverse impact on the species or stock and its habitat, and requirements pertaining to the mitigation, monitoring and reporting of such takings. NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.'' [[Page 71518]] Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for NMFS's review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small number of marine mammals. Within 45 days of the close of the public comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines ``harassment'' as: any act of pursuit, torment, or annoyance which (I) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. 16 U.S.C. 1362(18). Summary of Request On May 17, 2011, NMFS received a letter from the ACOE, requesting an IHA. The requested IHA would authorize the take, by Level B (behavioral) harassment, of small numbers of Atlantic bottlenose dolphins (Tursiops truncatus) incidental to blasting operations in the Miami Harbor, Port of Miami, in Miami-Dade County, Florida. The IHA application was considered adequate and complete on September 9, 2011. The ACOE proposes to conduct four components as part of the project in Miami Harbor. These components are: (1) The widening of Cut 1 and deepening of Cut 1 and Cut 2; (2) Adding a turn widener and deepening at the southern intersection of Cut 3 within Fisherman's Channel; (3) Widening and deepening the Fisher Island Turning Basin; and (4) Expanding the Federal Channel and Port of Miami berthing areas in Fisherman's Channel and the Lummus Island Turning Basin. The construction will likely be completed using a combination of mechanical dredge (i.e., a clamshell or backhoe), cutterhead dredge, and rock pre-treatment by confined blasting. The dredging will remove approximately 5,000,000 cubic yards (3,822,774.3 cubic meters [m\3\]) of material from the harbor. Material removed from the dredging will be placed in Miami Harbor Ocean Dredged Material Disposal Site, or used to construct seagrass and reef mitigation projects. The blasting is proposed to take place beginning during the summer of 2012 (June, 2012), and is expected to take up to 24 months in Miami, Florida. Additional information on the construction project is contained in the application, which is available upon request (see ADDRESSES). Description of the Proposed Specified Activities The ACOE proposes to deepen and widen the Federal channels at Miami Harbor, Port of Miami, in Miami-Dade County, Florida. The recommended plan (Alternative 2 of the Environmental Impact Statement [EIS]) includes four components: (1) Widen the seaward portion of Cut 1 from 500 to 800 feet (ft) (152.4 to 243.8 meters [m]) and deepen Cut 1 and Cut 2 from a project depth of -44 to -52 ft (13.4 to 15.9 m); (2) Add a turn widener at the southern intersection of Cut 3 within Fisherman's Channel and deepen to a project depth of -50 ft (-15.2 m); (3) Increase the Fisher Island Turning Basin from 1,200 to 1,500 ft (365.8 to 457.2 m), truncate the northeast section of the turning basin to minimize seagrass impacts, and deepen from -42 ft (-12.8 m) to a project depth of -50 ft; and (4) The Federal Channel and Port of Miami berthing areas in Fisherman's Channel and in the eastern end of the Lummus Island Turning Basin (LITB) will be expanded by 60 ft (18.3 m) to the south for a total of a 160 ft (48.8 m) wide berthing area and will be deepened from -42 ft to a project depth of -50 ft. The Federal Channel will be widened 40 ft (12.2 m) to the south, for a 100 ft (30.5 m) total width increase in Fisherman's Channel. Component 5 will deepen Fisherman's Channel and the LITB from -42 ft to a project depth of -50 ft. See Figure 1 of ACOE's IHA application for a map of the proposed project's components. Disposal of the estimated five million cubic yards of dredged material would occur at up to three disposal sites (seagrass mitigation area, offshore artificial reef mitigation areas, and the Miami Offshore Dredged Material Disposal Site). This project was previously evaluated under an Environmental Impact Statement (EIS) titled ``Miami Harbor Miami-Dade County, Florida Navigation Study, Final General Reevaluation Report and Environmental Impact Statement,'' prepared under the National Environmental Policy Act, and a Record of Decision for the proposed project was signed on May 22, 2006. The original proposed project included six components, two of which (four and six) have been removed. The EIS provides a detailed explanation of project location as well as all aspects of project implementation. It is also available online for public review at: http://www.saj.usace.army.mil/Divisions/Planning/Branches/Environmental/DOCS/OnLine/Dade/MiamiHarbor/NAV_STUDY_VOL-1_MIAMI.pdf. To achieve the deepening of the Miami Harbor from the existing depth of -45 ft (-13.7 m) to project depth of -52 ft, pretreatment of some of the rock areas may be required using confined underwater blasting, where standard construction methods are unsuccessful due to the hardness of the rock. The ACOE has used two criteria to determine which areas are most likely to need blasting for the Miami Harbor expansion: (1) Areas documented by core borings to contain hard and/or massive rock; and (2) areas previously blasted in the harbor during the 2005 blasting and dredging project. The duration of the blasting is dependent upon a number of factors including hardness of rock, how close the drill holes are placed, and the type of dredging equipment that will be used to remove the pretreated rock. Without this information, an exact estimate of how many ``blast days'' will be required for the project cannot be determined. The harbor deepening project at Miami Harbor in 2005 to 2006 estimated between 200 to 250 days of blasting with one shot per day (a blast day) to pre-treat the rock associated with that project; however, the contractor completed the project in 38 days with 40 blasts. The upcoming expansion at Miami Harbor scheduled to begin in summer/fall of 2012 currently estimates a maximum of 600 blast days for the entire project footprint. While blasting events will occur only during the day, other operations associated with the proposed action will take place 24 hours a day, typically six days a week. The contractor may drill the blast array at night and then blast after at least two hours after sunrise (1 hour, plus one hour of monitoring). After detonation of the first explosive array, a second array may be drilled and detonated before the one-hour before sunset prohibition is triggered. Blasting activities normally will not take place on Sundays due to local ordinances. At this time, the ACOE has not selected a contractor and thus, does not have a contractor-developed blasting plan from the contractor specifically identifying the number of holes that will be drilled, the amount of explosives that will be used for each hole, the number of blasts per day (usually no more than two per a day) or the number of days the construction is anticipated to take to complete. The ACOE is required to have [[Page 71519]] all authorizations and permits completed (including the possession of an IHA) prior to the request for proposal and advertising the contract, per the Competition in Contracting Act, and the Federal Acquisition Regulations. While the ACOE does not have contract bids at this time, it is possible to make reasonable estimates of the bounds based on previous similar projects that have been conducted by the ACOE here and at other locations. NMFS concurs with the use of the worse case scenarios in order to estimate blasting activities and associated potential impacts. Blast holes are small in diameter and only 5 to 10 ft (1.5 to 3.1 m) deep, drilling activities take place for a short time duration, with no more than three holes being drilled at the same time (based on the current drill-rigs available in the industry that range from one to three drills). During the 2005 blasting event, dolphins were seen near the drill barge during drilling events and the ACOE did not observe avoidance behavior. No measurements associated with noise from drilling small blast holes have been recorded. The ACOE does not expect incidental harassment from drilling operations and is not requesting take associated with this activity. Although the ACOE does not have a specific contractor-provided blasting plan, the ACOE developed plans and specifications for the project that direct the contractor to do certain things in certain ways and are basing these plans and specifications on the previous deepening project in Miami Harbor (construction was conducted in 2005 to 2006). The previous ACOE project in Miami Harbor required a maximum weight of explosives used in each delay of 376 pounds (lb) (170.6 kilograms [kg]) and the contractors blasted once or twice daily from June 25 to August 25, 2005, for a total of 40 individual blasts in 38 days of blasting. The 2005 project blasting was limited to Fisherman's Channel and the Dodge-Lummus Island Turning Basin (see Figure 2 of ACOE's IHA application, which shows the blasting footprint for the 2005 project), whereas the project described in the ACOE's application includes Fisherman's Channel, Dodge-Lummus Island Turning Basin, Fisher Island Turning Basin, and Inner and Outer Entrance Channel. This larger area will result in more blasting for this project than was completed in 2005, as it includes areas not previously blasted in 2005. A copy of the Federal Register notice of issuance for the IHA from 2003 (68 FR 32016, May 29, 2003), the IHA renewal from 2005 (70 FR 21174, April 25, 2005), and the final biological monitoring report from the ACOE's Miami Harbor Phase II project (completed in 2006) is attached to the ACOE's application and available on NMFS's Web site at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#iha. For the new construction at Miami Harbor, the ACOE expects the proposed project may take multiple years, and the ACOE will seek subsequent renewals of this IHA after issuance, with sufficient time to prevent any delay to the project. For the proposed deepening at Miami Harbor, the ACOE has consulted with blasting industry experts and believe, that based on the rock hardness and composition at Miami Harbor, a maximum charge weight per delay of 450 lbs (204.1 kg) should be expected. The minimum charge weight will be 10 lbs (4.5 kg). The focus of the proposed blasting work at the Miami Harbor is to pre-treat the massive limestone formation that makes up the base of Miami Harbor prior to removal by a dredge utilizing confined blasting, meaning the explosive shots would be ``confined'' in the rock. Typically, each blast array is set up in a square or rectangle area divided into rows and columns (see Figures 3, 4, and 5 in the ACOE's IHA application). An average blast array is 10 holes long by 4 holes wide with holes being spaced 40 ft (12.2 m) apart covering an area of 4,000 ft\2\ (371.6 m\2\). Blast arrays near bulkheads can be long- linear feature of one-hole wide by 8 or 10 holes long (see Figure 4 of the IHA application). In confined blasting, each charge is placed in a hole drilled in the rock approximately 5 to 10 ft (1.5 to 3.0 m) deep; depending on how much rock/concrete needs to be broken and the intended project depth. The hole is then capped with an inert material, such as crushed rock. This process is referred to as ``stemming the hole'' (see Figure 6 and 7 of ACOE's IHA application; each bag as shown contains approximate volume of material used per discharge). The ACOE used this technique previously at the Miami Harbor Phase II project in 2005. NMFS issued an IHA for that operation on May 22, 2003 (68 FR 32016, May 29, 2003) and renewed the IHA on April 19, 2005 (70 FR 21174, April 25, 2005). For the Port of Miami expansion project (Miami Harbor Phase II) that used blasting as a pre-treatment technique, the stemming material was angular crushed rock. (Stemming is the process of filling each borehole with crushed rock after the explosive charge has been placed. After the blasting charge has been set, then the chain of explosives within the rock is detonated. Stemming reduces the strength of the outward pressure wave produced by blasts.) The optimum size of stemming material is material that has an average diameter of approximately 0.05 times the diameter of the blast-hole. The selected material must be angular to perform properly (Konya, 2003). For the ACOE's proposed project, specifications will be prepared by the geotechnical branch of the Jacksonville District. In the Miami Harbor Phase II project, the following requirements were in the specifications regarding stemming material: 1.22.9.20 Stemming All blast holes shall be stemmed. The Blaster or Blasting Specialist shall determine the thickness of stemming using blasting industry conventional stemming calculations. The minimum stemming shall be 2 ft (0.6 m) thick. Stemming shall be placed in the blast hole in a zone encompassed by competent rock. Measures shall be taken to prevent bridging of explosive materials and stemming within the hole. Stemming shall be clean, angular to sub-angular, hard stone chips without fines having an approximate diameter of \1/2\ inch (in; 1.3 centimeters [cm]) to \3/8\ in (1 cm). A barrier shall be placed between the stemming and explosive product, if necessary, to prevent the stemming from setting into the explosive product. Anything contradicting the effectiveness of stemming shall not extend through the stemming (see Figure 6 of ACOE's IHA application for a typical drill hole configuration with stemming). The specifications for any construction utilizing the blasting for the deepening of Miami Harbor would have similar stemming requirements as those that were used for the Miami Harbor Phase II project in 2005 to 2006. The length of stemming material would vary based on the length of the hole drilled, however minimum lengths would be included in the project specific specifications. Studies have shown that stemmed blasts have up to a 60 to 90 percent decrease in the strength of the pressure wave released, compared to open water blasts of the same charge weight (Nedwell and Thandavamoorthy, 1992; Hempen et al., 2005; Hempen et al., 2007). However, unlike open water (unconfined) blasts (see Figure 8 of ACOE's IHA application), very little peer-reviewed research exists on the effects that confined blasting can have on marine animals near the blast (Keevin et al., 1999). The visual evidence from a typical confined blast is shown in Figure 9 of ACOE's IHA application. In confined blasting, the detonation is conveyed from the drill barge to the [[Page 71520]] primer and the charge itself by Primacord and Detaline. These are used to safety fire the blast from a distance to ensure human safety from the blast. The Primacord and Detaline used on this project have a specific grain weight, and they burn like a fuse. They are not electronic. The time delay from activation to detonation of the charge is less than one second. As part of the development of the protected species monitoring and mitigation protocols, which will be incorporated into the plans and specification for the proposed project, ACOE will continue to coordinate with the resource agencies and non-governmental organizations (NGOs) to address concerns and potential impacts associated with the use of blasting as a construction technique. To estimate the maximum poundage of explosives that may be utilized for this proposed project, the ACOE has reviewed two previous blasting projects, one at San Juan Harbor, Puerto Rico in 2000, and one at Miami Harbor, Florida in 2005. The San Juan Harbor project's heaviest blast event using explosives was 375 lbs (170.1 kg) per delay and in Miami it was 376 lbs (170.6 kg) per delay. Based on discussion with the ACOE's geotechnical engineers, it is expected that the maximum weight of delays for Miami Harbor will be larger since the rock is much harder than what is seen at the Port of Miami. Based upon industry standards and ACOE Safety & Health Regulations, the blasting program may consist of the following:The weight of explosives to be used in each blast will be limited to the lowest poundage of explosives that can adequately break the rock. Drill patterns are restricted to a minimum of 8 ft (2.4 m) separation from a loaded hole. Hours of blasting are restricted from two hours after sunrise to one hour before sunset to allow for adequate observation of the proposed project area for marine mammals. Selection of explosive products and their practical application method must address vibration and air blast (overpressure) control for protection of existing structures and marine wildlife. Loaded blast holes will be individually delayed to reduce the maximum lbs per delay at point detonation, which in turn will reduce the mortality radius. The blast design will consider matching the energy in the ``work effort'' of the borehole to the rock mass or target for minimizing excess energy vented into the water column or hydraulic shock. Delay timing adjustments with a minimum of 8 milliseconds (ms) between delay detonations to stagger the blast pressures and prevent cumulative addition of pressures in the water. Test Blast Program Prior to implementing a construction blasting program, a test blast program will be completed. The test blast program will have all the same protective monitoring and mitigation measures in place for protected species as blasting operations for construction purposes. The purpose of the test blast program is to demonstrate and/or confirm the following: Drill boat capabilities and production rates; Ideal drill pattern for typical boreholes; Acceptable rock breakage for excavation; Tolerable vibration level emitted; Directional vibration; and Calibration of the environment. The test blast program begins with a single range of individually delayed holes and progresses up to the maximum production blast intended for use. The test blast program will take place in the proposed project area and will count toward the pre-treatment of material, since the blasts of the test blast program will be cracking rock. Each test blast is designed to establish limits of vibration and air blast overpressure, with acceptable rock breakage for excavation. The final test event simulates the maximum explosive detonation as to size, overlying water depth, charge configuration, charge separation, initiation methods, and loading conditions anticipated for the typical production blast. The results of the test blast program will be formatted in a regression analysis with other pertinent information and conclusions reached. This will be the basis for developing a completely engineered procedure for the construction blasting plan. During the test blast program, the following data will be used to develop a regression analysis: Distance; Pounds per delay; Peak particles velocities (Threshold Limit Value [TVL]); Frequencies (TVL); Peak vector sum; and Air blast, overpressure. Additional details regarding the proposed blasting and dredging project can be found in the ACOE's IHA application and EIS. The EIS can also be found online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Description of the Proposed Dates, Duration, and Specified Geographic Region At this time the ACOE has not yet a specific date for the initiation of construction activities within the Port of Miami. However, the ACOE requests that the IHA to be issued by NMFS by November 30, 2011, to allow for the advertisement of the contract for construction in January, 2012; award the contract and provide the notice to proceed to the selected in May, 2012 to the selected contractor, resulting in construction work beginning after June, 2012. The proposed construction activities are expected to take up to 24 months and at this time, it is possible that blasting could take place at any time during construction. The ACOE also notes that multiple IHAs (up to three) will be needed and requested for this project due to the project duration. The proposed blasting activities will be limited to waters shallower than 60 ft (18.3 m), and located entirely on the continental shelf and will not take place seaward of the outer reef. The specified geographic area of the construction will be within the boundaries of the Port of Miami, in Miami, Florida (see Figure 11 of the ACOE's IHA application). The Port of Miami is an island facility consisting of 518 upland acres and is located in the northern portion of Biscayne Bay in South Florida. The City of Miami is located on the west side of the Biscayne Bay; the City of Miami Beach is located on an island on the northeast side of Biscayne Bay, opposite of Miami. Both cities are located in Miami-Dade County, Florida, and are connected by several causeways crossing the bay. The Port of Miami is the southernmost major port on the Atlantic Coast. The Port of Miami's landside facilities are located on Dodge-Lummus Island, which has a GPS location 25[deg] 46'05'' North 80[deg] 09'40'' West. See Figure 11 of the ACOE's IHA application for more information on the location of the proposed project area in the Port of Miami. Description of Marine Mammals in the Area of the Proposed Specified Activity Several cetacean species and a single species of sirenian are known to or could occur in the Miami Harbor action area and off the Southeast Atlantic coastline (see Table 1 below). Species listed as endangered under the U.S. Endangered Species Act (ESA), includes the humpback (Megaptera novaeangliae), sei (Balaenoptera borealis), fin (Balaenoptera physalus), blue (Balaenoptera musculus), North Atlantic right (Eubalaena glacialis), and [[Page 71521]] sperm (Physeter macrocephalus) whale, and West Indian (Florida) manatee (Trichechus manatus latirostris). The marine mammals that occur in the Atlantic Ocean off the U.S. southeast coast belong to three taxonomic groups: mysticetes (baleen whales), odontocetes (toothed whales), and sirenians (the manatee). The West Indian manatee in Florida and U.S. waters is managed under the jurisdiction of the U.S. Fish and Wildlife Service (USFWS) and therefore is not considered further in this analysis. Table 1 below outlines the marine mammal species and their habitat in the region of the proposed project area. Table 1--The Habitat and Conservation Status of Marine Mammals Inhabiting the Proposed Study Area in the Atlantic Ocean off the U.S. Southeast Coast ---------------------------------------------------------------------------------------------------------------- Species Habitat ESA \1\ MMPA \2\ ---------------------------------------------------------------------------------------------------------------- Mysticetes: North Atlantic right whale Coastal and shelf...... EN..................... D. (Eubalaena glacialis). Humpback whale (Megaptera Pelagic, nearshore EN..................... D. novaeangliae). waters, and banks. Bryde's whale (Balaenoptera Pelagic and coastal.... NL..................... NC. brydei). Minke whale (Balaenoptera Shelf, coastal, and NL..................... NC. acutorostrata). pelagic. Blue whale (Balaenoptera Pelagic and coastal.... EN..................... D. musculus). Sei whale (Balaenoptera borealis) Primarily offshore, EN..................... D. pelagic. Fin whale (Balaenoptera physalus) Slope, mostly pelagic.. EN..................... D. Odontocetes: Sperm whale (Physeter Pelagic, deep seas..... EN..................... D. macrocephalus). Cuvier's beaked whale (Ziphius Pelagic................ NL..................... NC. cavirostris). Gervais' beaked whale (Mesoplodon Pelagic................ NL..................... NC. europaeus). True's beaked whale (Mesoplodon Pelagic................ NL..................... NC. mirus). Blainville's beaked whale Pelagic................ NL..................... NC. (Mesoplodon densirostris). Dwarf sperm whale (Kogia sima)... Offshore, pelagic...... NL..................... NC. Pygmy sperm whale (Kogia Offshore, pelagic...... NL..................... NC. breviceps). Killer whale (Orcinus orca)...... Widely distributed..... NL..................... NC. EN (Southern Resident). D (Southern Resident, AT1 Transient). Short-finned pilot whale Inshore and offshore... NL..................... NC. (Globicephala macrorhynchus). False killer whale (Pseudorca Pelagic................ NL..................... NC. crassidens). Mellon-headed whale Pelagic................ NL..................... NC. (Peponocephala electra). Pygmy killer whale (Feresa Pelagic................ NL..................... NC. attenuata). Risso's dolphin (Grampus griseus) Pelagic, shelf......... NL..................... NC. Bottlenose dolphin (Tursiops Offshore, Inshore, NL..................... NC. truncatus). coastal, and estuaries. S (Biscayne Bay and Central Florida Coastal stocks). D (Western North Atlantic Coastal). Rough-toothed dolphins (Steno Pelagic................ NL..................... NC. bredanensis). Fraser's dolphin (Lagenodelphis Pelagic................ NL..................... NC. hosei). Striped dolphin (Stenella Pelagic................ NL..................... NC. coeruleoalba). Pantropical spotted dolphin Pelagic................ NL..................... NC. (Stenella attenuata). D (Northeastern Offshore). Atlantic spotted dolphin Coastal to pelagic..... NL..................... NC. (Stenella frontalis). Spinner dolphin (Stenella Mostly pelagic......... NL..................... NC. longirostris). D (Eastern). Clymene dolphin (Stenella Pelagic................ NL..................... NC. clymene). Sirenians: [[Page 71522]] West Indian (Florida) manatee Coastal, rivers, and EN..................... D. (Trichechus manatus latirostris). estuaries. ---------------------------------------------------------------------------------------------------------------- \1\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, NL = Not listed. \2\ U.S. Marine Mammal Protection Act: D = Depleted, S = Strategic, NC = Not classified. The one species of marine mammal under NMFS jurisdiction known to commonly occur in close proximity to the proposed blasting area of the Port of Miami is the Atlantic bottlenose dolphin, specifically the stocks living near the Port of Miami within Biscayne Bay (the Biscayne Bay stock) or transiting the outer entrance channel (Western North Atlantic Central Florida Coastal stock). Atlantic Bottlenose Dolphin Atlantic bottlenose dolphins are distributed worldwide in tropical and temperate waters, and in U.S. waters occur in multiple complex stocks along the U.S. Atlantic coast. The coastal morphotype of bottlenose dolphins is continuously distributed along the Atlantic coast south of Long Island, New York, to the Florida peninsula, including inshore waters of the bays, sounds, and estuaries. Except for animals residing within the Southern North Carolina and Northern North Carolina Estuarine Systems (e.g., Waring et al., 2009), estuarine dolphins along the U.S. east coast have not been previously included in stock assessment reports. Several lines of evidence support a distinction between dolphins inhabiting coastal waters near the shore and those present in the inshore waters of the bays, sounds, and estuaries. Photo-identification (photo-ID) and genetic studies support the existence of resident estuarine animals in several inshore areas of the southeastern United States (Caldwell, 2001; Gubbins, 2002; Zolman, 2002; Mazzoil et al., 2005; Litz, 2007), and similar patterns have been observed in bays and estuaries along the Gulf of Mexico coast (Well et al., 1987; Balmer et al., 2008). Recent genetic analyses using both mitochondrial DNA and nuclear microsatellite markers found significant differentiation between animals biopsied along the coast and those biopsied within the estuarine systems at the same latitude (NMFS, unpublished data). Similar results have been found off the west coast of Florida (Sellas et al., 2005). Biscayne Bay Stock Biscayne Bay is a shallow estuarine system located along the southeast coast of Florida in Miami-Dade County. The Bay is generally shallow (depths greater than 5 m [16.4 ft]) and includes a diverse range of benthic communities including seagrass beds, soft coral and sponge communities, and mud flats. The northern portion of Biscayne Bay is surrounded by the cities of Miami and Miami Beach and is therefore heavily influenced by industrial and municipal pollution sources. The water flow in this portion of Biscayne Bay is very restricted due to the construction of dredged islands (Bialczak et al., 2001). In contrast, the central and southern portions of Biscayne Bay are less influenced by development and are better flushed. Water exchange with the Atlantic Ocean occurs through a broad area of grass flats and tidal channels termed the Safety Valve. Biscayne Bay extends south through Card Sound and Barnes Sound, and connects through smaller inlets to Florida Bay. The Biscayne Bay stock of bottlenose dolphins is bounded by Haulover Inlet to the north and Card Sound Bridge to the south. This range corresponds to the extent of confirmed home ranges of bottlenose dolphins observed residing in Biscayne Bay by a long-term photo-ID study conducted by the Southeast Fisheries Science Center (Litz, 2007; SEFSC unpublished data). It is likely that the range of Biscayne Bay dolphins extends past these boundaries; however, there have been few surveys outside of this range. These boundaries are subject to change upon further study of dolphin home ranges within the Biscayne Bay estuarine system and comparison to an extant photo-ID catalog from Florida Bay to the south. Dolphins residing within estuaries north of this stock along the southeastern coast of Florida are currently not included in a stock assessment report. There are insufficient data to determine whether animals in this region exhibit affiliation to the Biscayne Bay stock, the estuarine stock further to the north in the Indian River Lagoon Estuarine System (IRLES), or are simply transient animals associated with coastal stocks. There is relatively limited estuarine habitat along this coastline; however, the Intracoastal Waterway extends north along the coast to the IRLES. It should be noted that during 2003 to 2007, there were three stranded bottlenose dolphins in this region in enclosed waters. One of these had signs of human interaction from a boat strike and another was identified as an offshore morphotype of bottlenose dolphin. Bottlenose dolphins have been documented in Biscayne Bay since the 1950's (Moore, 1953). Live capture fisheries for bottlenose dolphins are known to have occurred throughout the southeastern U.S. and within Biscayne Bay during the 1950's and 1960's; however, it is unknown how many individuals may have been removed from the population during this period (Odell, 1979; Wells and Scott, 1999). The Biscayne Bay bottlenose dolphin stock has been the subject of an ongoing photo-ID study conducted by the NMFS SEFSC since 1990. From 1990 to 1991, preliminary information was collected focusing on the central portion of Biscayne Bay. The survey was re-initiated in 1994, and it was expanded to include the northern portion of Biscayne Bay and south to the Card Sound Bridge in 1995 (SEFSC unpublished data; Litz, 2007). Through 2007, the photo-ID catalog included 229 unique individuals. Approximately 80% of these individuals may be long-term residents with multiple sightings over the 17 years of the study (SEFSC, unpublished data). Analyses of the sighting histories and associations of individuals from the Biscayne Bay segregated along a north/south gradient (Litz, 2007). Remote biopsy samples of Biscayne Bay animals were collected between 2002 and 2004 for analyses of population genetic structure and persistent organic pollutant concentrations in blubber. Genetic structure was investigated using both mitochondrial DNA and nuclear (microsatellite) markers, and the data from Biscayne Bay were compared to data from Florida Bay dolphins to the south (Litz, 2007). Within Biscayne Bay, dolphins sighted primarily in the northern half of Biscayne Bay were significantly differentiated from those sighted primarily in the southern half at the microsatellite loci but not at the [[Page 71523]] mitochondrial locus. There was not sufficient genetic information between these groups to indicate true population subdivision (Litz, 2007). However, genetic differentiation was found between the Biscayne Bay and Florida Bay dolphins in both markers (Litz, 2007). The observed genetic differences between resident animals in Biscayne Bay and those in an adjacent estuary combined with the high levels of sight fidelity observed, demonstrate that the resident Biscayne Bay bottlenose dolphins are a demographically distinct population stock. The total number of bottlenose dolphins in the Biscayne Bay stock is unknown. During small boat surveys between 2003 and 2007, 157 unique individuals were identified using standard methods, however, this catalog size does not represent a valid estimate of population size because the residency patterns of dolphins in Biscayne Bay is not fully understood. Litz (2007) determined that 69 animals in Biscayne Bay have a northern home range. Based on Waring et al. (2010), the maximum population of animals that may be in the proposed project area is equal to the total number of uniquely identified animals for the entire photo-ID study of Biscayne Bay--229 individuals. Present data are insufficient to calculate a minimum population estimate, and to determine the population trends, for the Biscayne Bay stock of bottlenose dolphins. The total human-caused mortality and serious injury for this stock is unknown and there is insufficient information available to determine whether the total fishery-related mortality and serious injury for this stock is insignificant and approaching zero mortality and serious injury rate. Documented human-caused mortalities in recreational fishing gear entanglement and ingestion of gear reinforce concern for this stock. Because the stock size is currently unknown, but likely small and relatively few mortalities and serious injuries would exceed potential biological removal, NMFS considers this stock to be a strategic stock. Western North Atlantic Central Florida Coastal Stock On the Atlantic coast, Scott et al. (1988) hypothesized a single coastal migratory stock ranging seasonally from as far north as Long Island, to as far south as central Florida, citing stranding patterns during a high mortality event in 1987 to 1988 and observed density patterns. More recent studies demonstrate that the single coastal migratory stock hypothesis is incorrect, and there is instead a complex mosaic of stocks (McLellan et al., 2003; Rosel et al., 2009). The coastal morphotype is morphologically and genetically distinct from the larger, more robust morphotype primarily occupying habitats further offshore (Hoelzel et al., 1998; Mead and Potter, 1995; Rosel et al., 2009). Aerial surveys conducted between 1978 and 1982 (CETAP, 1982) north of Cape Hatteras, North Carolina, identified two concentrations of bottlenose dolphins, one inshore of the 82 ft (25 m) isobath and the other offshore of the 164 ft (50 m) isobath. The lowest density of bottlenose dolphins was observed over the continental shelf, with higher densities along the coast and near the continental shelf edge. It was suggested, therefore, that north of Cape Hatteras, North Carolina, the coastal morphotype is restricted to waters less than 82 ft deep (Kenney, 1990). Similar patterns were observed during summer months in more recent aerial surveys (Garrison and Yeung, 2001; Garrison et al., 2003). However, south of Cape Hatteras during both winter and summer months, there was no clear longitudinal discontinuity in bottlenose dolphin sightings (Garrison and Yeung 2001; Garrison et al., 2003). To address the question of distribution of coastal and offshore morphotypes in waters south of Cape Hatteras, tissue samples were collected from large vessel surveys during the summers of 1998 and 1999, from systematic biopsy sampling efforts in nearshore waters from New Jersey to central Florida conducted in the summers of 2001 and 2002, and from winter biopsy collection effort in 2002 and 2003 in nearshore continental shelf waters of North Carolina and Georgia. Additional biopsy samples were collected in deeper continental shelf waters south of Cape Hatteras during the winter of 2002. Genetic analyses using mitochondrial DNA sequences of these biopsies identified individual animals to the coastal or offshore morphotype. Using the genetic results from all surveys combined, a logistic regression was used to model the probability that a particular bottlenose dolphin group was of the coastal morphotype as a function of environmental variables including depth, sea surface temperature, and distance from shore. These models were used to partition the bottlenose dolphin groups observed during aerial surveys between the two morphotypes (Garrison et al., 2003). The genetic results and spatial patterns observed in aerial surveys indicate both regional and seasonal differences in the longitudinal distribution of the two morphotypes in coastal Atlantic waters. Generally, from biopsy samples collected, the coastal morphotype is found in nearshore waters, the offshore morphotype in deeper waters and a spatial overlap between the two morphotypes in intermediate waters. More information on the seasonal differences and genetic studies off of the Carolina's, Georgia, and Florida, differentiating morphotypes of bottlenose dolphins can be found online in the NMFS stock assessment reports. In summary, the primary habitat of the coastal morphotype of bottlenose dolphin extends from Florida to New Jersey during summer months and in waters less than 65.6 ft (20 m) deep, including estuarine and inshore waters. In addition to inhabiting coastal nearshore waters, the coastal morphotype of bottlenose dolphin also inhabits inshore estuarine waters along the U.S. east coast and Gulf of Mexico (Wells et al., 1987; Wells et al., 1996; Scott et al., 1990; Weller, 1998; Zolman, 2002; Speakman et al., 2006; Stolen et al., 2007; Balmer et al., 2008; Mazzoil et al., 2008). There are multiple lines of evidence supporting demographic separation between bottlenose dolphins residing within estuaries along the Atlantic coast. In Biscayne Bay, Florida, there is a similar community of bottlenose dolphins with evidence of year-round residents that are genetically distinct from animals residing in a nearby estuary in Florida Bay (Litz, 2007). A few published studies demonstrate that there are significant genetic distinctions and differences between animals in nearshore coastal waters and estuarine waters (Caldwell, 2001; Rosel et al., 2009). Despite evidence for genetic differentiation between estuarine and nearshore populations, the degree of spatial overlap between these populations remains unclear. Photo-ID studies within estuaries demonstrate seasonal immigration and emigration and the presence of transient animals (e.g., Speakman et al., 2006). In addition, the degree of movement of resident estuarine animals into coastal waters on seasonal or shorter time scales is poorly understood. However, for the purposes of this analysis, bottlenose dolphins inhabiting primarily estuarine habitats are considered distinct from those inhabiting coastal habitats. Initially, a single stock of coastal morphotype bottlenose dolphins was thought to migrate seasonally between New Jersey (summer months) and central Florida based on seasonal patterns in strandings during a large scale mortality event occurring during 1987 to 1988 (Scott et al., 1988). However, re- analysis of [[Page 71524]] stranding data (McLellan et al., 2003) and extensive analysis of genetic (Rosel et al., 2009), photo-ID (Zolman, 2002) and satellite telemetry (NMFS, unpublished data) data demonstrate a complex mosaic of coastal bottlenose dolphin stocks. Integrated analysis of these multiple lines of evidence suggests that there are five coastal stocks of bottlenose dolphins: The Northern Migratory and Southern Migratory stocks, a South Carolina/Georgia Coastal stock, a Northern Florida Coastal stock, and a Central Florida Coastal stock. The spatial extent of these stocks, their potential seasonal movements, and their relationships with estuarine stocks are poorly understood. More information on the migratory movements and genetic analyses of bottlenose dolphins can be found online in the NMFS stock assessment reports. The NMFS stock assessment report addresses the Central Florida Coastal stock, which is present in coastal Atlantic waters from 29.4[deg] North south to the western end of Vaca Key (approximately 24.69[deg] North to 81.11[deg] West) where the stock boundary for the Florida Keys stock begins (see Figure 1 of the NMFS Stock Assessment Report). There has been little study of bottlenose dolphin stock structure in coastal waters of southern Florida; therefore the southern boundary of the Central Florida stock is uncertain. There is no obvious boundary defining the offshore extent of this stock. The combined genetic and logistic regression analysis (Garrison et al., 2003) indicated that in waters less than 32.8 ft (10 m) depth, 70% of the bottlenose dolphins were of the coastal morphotype. Between 32.8 ft and 65.6 ft depth, the percentage of animals of the coastal morphotype dropped precipitously, and at depths greater than 131.2 ft (40 m) nearly all (greater than 90%) animals were of the offshore morphotype. These spatial patterns may not apply in the Central Florida Coastal stock, as there is a significant change in the bathymetric slope and a close approach of the Gulf Stream to the shoreline south of Cape Canaveral. Aerial surveys to estimate the abundance of coastal bottlenose dolphins in the Atlantic were conducted during winter (January to February) and summer (July to August) of 2002. Abundance estimates for bottlenose dolphins in each stock were calculated using line-transect methods and distance analysis (Buckland et al., 2001). More information on the survey tracklines, design, effort, animals sighted, and methods for calculating estimated abundance can be found online in the NMFS stock assessment reports. The estimated best and minimum population for the Central Florida Coastal Stock is 6,318 and 5,094 animals, respectively. There are insufficient data to determine the population trends for this stock. From 1995 to 2001, NMFS recognized only a single migratory stock of coastal bottlenose dolphins in the western North Atlantic, and the entire stock was listed as depleted. This stock structure was revised in 2002 to recognize both multiple stocks and seasonal management units and again in 2008 and 2010 to recognize resident estuarine stocks and migratory and resident coastal stocks. The total U.S. fishery-related mortality and serious injury for the Central Florida Coastal stock likely is less than 10% of the calculated PBR, and thus can be considered to be insignificant and approaching zero mortality and serious injury rate. However, there are commercial fisheries overlapping with this stock that have no observer coverage. This stock retains the depleted designation as a result of its origins from the originally delineated depleted coastal migratory stock. The species is not listed as threatened or endangered under the ESA, but this is a strategic stock due to the depleted listing under the MMPA. Further information on the biology and local distribution of these species and others in the region can be found in ACOE's IHA application, which is available upon request (see ADDRESSES), and the NMFS Marine Mammal Stock Assessment Reports, which are available online at: http://www.nmfs.noaa.gov/pr/species/. Potential Effects on Marine Mammals In general, potential impacts to marine mammals from explosive detonations could include mortality, serious injury, as well as Level A harassment (injury) and Level B harassment. In the absence of monitoring and mitigation, marine mammals may be killed or injured as a result of an explosive detonation due to the response of air cavities in the body, such as the lungs and bubbles in the intestines. Effects are likely to be most severe in near surface waters where the reflected shock wave creates a region of negative pressure called ``cavitation.'' A second potential possible cause of mortality is the onset of extensive lung hemorrhage. Extensive lung hemorrhage is considered debilitating and potentially fatal. Suffocation caused by lung hemorrhage is likely to be the major cause of marine mammal death from underwater shock waves. The estimated range for the onset of extensive lung hemorrhage to marine mammals varies depending upon the animal's weight, with the smallest mammals having the greatest potential hazard range. NMFS's criteria for determining non-lethal injury (Level A harassment) from explosives are the peak pressure that will result in: (1) The onset of slight lung hemorrhage, or (2) a 50 percent probability level for a rupture of the tympanic membrane (TM). These are injuries from which animals would be expected to recover on their own. NMFS has established dual criteria for what constitutes Level B harassment: (1) An energy based temporary threshold shift (TTS) received sound levels 182 dB re 1 [mu]Pa\2\-s cumulative energy flux in any \1/3\ octave band above 100 Hz for odontocetes (derived from experiments with bottlenose dolphins (Ridgway et al., 1997; Schlundt et al., 2000); and (2) 12 psi peak pressure cited by Ketten (1995) as associated with a safe outer limit for minimal, recoverable auditory trauma (i.e., TTS). The Level B harassment zone, therefore, is the distance from the mortality, serious injury, injury (Level A harassment) zone to the radius where neither of these criterion is exceeded. [[Page 71525]] Table 2--NMFS's Threshold Criteria and Metrics Utilized for Impact Analyses From the Use of Explosives ---------------------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------------------- Mortality Level A Harassment Level B Harassment Level B Harassment (Non-lethal injury) (Non-injurious; (Non-injurious TTS and behavioral, Sub- associated TTS) behavioral disruption [dual criteria]) ---------------------------------------------------------------------------------------------------------------- 31 psi-msec (onset of severe 205 dB re 1 13 psi-msec 182 dB re 1 177 dB re 1 lung injury [mass of dolphin [mu]Pa\2\[middot] positive pressure [mu]Pa\2\[middot] [mu]Pa\2\[middot] calf]). s EFD (50 percent (onset of slight s EFD*; 23 psi s EFD* (for of animals would lung injury). peak pressure (< multiple experience TM 2,000 lb) 12 psi detonations only) rupture). peak pressure (<= 2,000 lb). ---------------------------------------------------------------------------------------------------------------- * Note: In greatest \1/3\-octave band above 10 Hz or 100 Hz. The primary potential impact to the Atlantic bottlenose dolphins occurring in the Port of Miami action area from the proposed detonations is Level B harassment incidental to noise generated by explosives. In the absence of any monitoring or mitigation measures, there is a very small chance that a marine mammal could be injured, seriously injured, or killed when exposed to the energy generated from an explosive force on the sea floor. However, the ACOE and NMFS believes that the proposed monitoring and mitigation measures will preclude this possibility in the case of this particular proposed activity. Non-lethal injurious impacts (Level A harassment) are defined in this proposed IHA as TM rupture and the onset of slight lung injury. The threshold for Level A harassment corresponds to a 50 percent rate of TM rupture, which can be stated in terms of an energy flux density (EFD) value of 205 dB re 1 [mu]Pa\2\s. TM rupture is well-correlated with permanent hearing impairment (Ketten, 1998) indicates a 30 percent incidence of permanent threshold shift (PTS) at the same threshold. The farthest distance from the source at which an animal is exposed to the EFD level for the Level A harassment threshold is unknown at this time. Level B (non-injurious) harassment includes temporary (auditory) threshold shift (TTS), a slight, recoverable loss of hearing sensitivity. One criterion used for TTS is 182 dB re 1 [mu]Pa[sup2] s maximum EFD level in any \1/3\-octave band above 100 Hz for toothed whales (e.g., dolphins). A second criterion, 23 psi, has been established by NMFS to provide a more conservative range of TTS when the explosive or animals approaches the sea surface, in which case explosive energy is reduced, but the peak pressure is not. For the proposed project in Miami Harbor, the distance from the blast array at which the 23 psi threshold could be met for various charge detonation weights can be, and has been calculated. Level B harassment may also include behavioral modifications resulting from repeated noise exposures (below TTS) to the same animals (usually resident) over a relatively short period of times. Threshold criteria for this particular type of harassment are currently still being considered. One recommendation is a level of 6 dB below TTS (see 69 FR 21816, April 22, 2004), which would be 177 dB re 1 [mu]Pa\2\s. The Level B harassment (behavioral) threshold criteria would not apply to the ACOE's proposed activity because there will only two blasting events a day, and the multiple (staggered) detonations are within a few microseconds of each other and do not last more than a few seconds in total duration per a blasting event. For an open-water, unconfined blast, the pressure edge of the danger zone is expected to be 23 psi. For a fully confined blast, the pressure at the edge of the danger zone is expected to be 6 psi. Utilizing the pressure data collected the Miami Harbor Phase II project in 2005, for a maximum charge weight of 450 lbs in a fully confined blast, the pressure is expected to be 22 psi approximately 700 ft (213.4 m) from the blast, which is below the threshold for Level B harassment (i.e., 23 psi criteria for explosives less than 2,000 lb). However to ensure the protection of marine mammals, and in case of an incident where a detonation is not fully confined, the ACOE assumes that any animal within the boundaries of a designated ``danger zone'' would be taken by Level B harassment. The ACOE is planning to implement a series of monitoring and mitigation measures to protect marine mammals from the potential impacts of the proposed blasting activities. The ACOE has designated a ``danger zone'' as the area within which the potential for Level B harassment occurs, and the ``exclusion zone'' as the area within which if an animal crosses and enters that zone then the blast will be delayed until the animal leaves the zone of its own volition. The exclusion zone is larger than the area where the ACOE has determined that Level B harassment will occur, so if the monitoring and mitigation measures implemented are successful as expected, and no detonation occurs when an animals is inside of the exclusion zone, no take by Level B harassment is likely to occur. However, to be conservative, the ACOE has calculated the potential exists for Level B harassment and is pursuing an IHA from NMFS. More information on how the danger and exclusion zones are determined is included in the ``Proposed Mitigation'' section of this document (see below). It has been noted on one previous occasion at the ACOE's Miami Harbor Phase II project in 2005 that a bottlenose dolphin outside the exclusion zone, in the deeper water channel, exhibited a startle response immediately following a blast. Details of that event from the monitoring report are included below: Any animals near the exclusion zone were watched carefully during the blast for any changes in behavior or noticeable reaction to the blast. The only observation that showed signs of a possible reaction to the blast was on July 27, when two dolphins were in the channel west of the blast. The dolphins were stationary at approximately 2,400 ft (731.5 m) from the blast array, feeding and generally cavorting. Due to the proximity of the dolphins, the drill barge was contacted prior to the blast to confirm that the exclusion zone calculation was 1,600 ft (487.7 m) for the lower weight of explosives used that day. The topography of the bottom in that area is very shallow (approximately 3.3 ft [1 m]) to the south, then an exceptionally steep drop off into the channel at 40 plus ft ending at the bulkhead wall to the north. Westward, the channel continues and has a more gradual upward slope. At the time of the blast, one of the dolphins was at the surface in the shallows, while the other dolphin was underwater within the channel. The dolphin that was underwater showed a strong reaction to the blast. The animal jumped fully out of the water in a `breaching' fashion; behavior that had not been exhibited prior to the blast. The animal was observed jumping out of the water immediately before the observers heard the blast suggesting that the animal reacted to the blast and not some other stimulus. It is probable that, because this animal was located in the channel, the sound and pressure of the blast traveled either farther or was more focused through [[Page 71526]] the channeling and the reflection from the bulkhead, thus causing the animal to react even though it was well outside the safety radius. These two dolphins were tracked for the entire 30 min post blast period and no obvious signs of distress or behavior changes were observed. Other animals observed near the safety radius during the blast were all to the south of the blasting array, well up on the seagrass beds or in the pipe channel that runs through the seagrass beds. None of these animals showed any reaction to the blast. Individual dolphins from other stocks and within the Biscayne Bay and Western North Atlantic Central Florida Coastal stocks potentially move both inshore and offshore of Biscayne Bay due to the openness of this bay system and closeness of the outer continental shelf. These movements are not fully understood and the possibility exists that these other stocks may be affected in the same manner as the Biscayne Bay and Western North Atlantic Central Florida Coastal stocks. Based on the data from the Miami Harbor project in 2005 and the implementation of the proposed monitoring and mitigation measures, the ACOE and NMFS expects limited potential effects of the proposed construction and blasting activities on marine mammals in the Port of Miami action area. Potential Effects on Marine Mammal Habitat The ACOE and NMFS are unable to determine if resident bottlenose dolphins in the proposed action area utilize the inner and outer channels, walls, and substrate of the Port of Miami as habitat for feeding, resting, mating, or other biologically significant functions. The bottom of the channel has been previously blasted, and the rock and sand dredged. The walls of the channels are composed of vertical rock. The ACOE acknowledges that while the port may not be suitable foraging habitat for bottlenose dolphins in Biscayne Bay, it is likely that dolphins may use the area to traverse to and from North Biscayne Bay or offshore via the main channel (i.e., Government Cut). The ACOE and NMFS are unable to determine how the temporary modification of the action area by the proposed construction and blasting activities will potentially impact the two stocks of bottlenose dolphins expected to be present in the Port of Miami. If animals are using the Port of Miami to travel from south to north Biscayne Bay or vice-versa and/or exiting the bay via the main shipping channel, the proposed construction and blasting activities may delay or detour their movements. Blasting within the boundaries of the Port of Miami will be limited both spatially and temporally. The explosives utilized in the proposed blasting operations are water soluble and non-toxic. If an explosive charge is unable to be fired and must be left in the drill hole, it is designed to break down. Also, each drill hole has a booster with detonator and detonation cord. Most of the detonation cord is recovered onto the drill barge by pulling it back onboard the drill barge after the blasting event. Small amounts of detonation cord may remain in the water after the blasting event has taken place, and will be recovered by small vessels with scoop nets. Any material left in the drill hole after the blast event will be recovered through the dredging process, when the cutterhead dredge excavates the fractured rock material. With regard to prey species (mainly fish), a very small number of fish are expected to be impacted by the proposed Miami Harbor project, based on the results of the 2005 blasting project in Miami Harbor. That project consisted of 40 blast events over a 38 day time frame. Of these 40 blast events, 23 were monitored (57.5% of the total) by the state and injured and dead fish were collected after the all clear was given (the ``all-clear'' is normally at least two to three min after the shot is fired, since seagulls and frigate birds quickly learned to approach the blast site and swoop in to eat some of the stunned, injured, and dead fish floating on the surface of the water). State biologists and volunteers collected the carcasses of the floating fish (note that not all dead fish float after a blasting event, and due to safety concerns, there are no plans to put divers on the bottom of the channel in the blast zone to collect non-floating fish carcasses. The fish were described to the lowest taxonomic level possible (usually species) and the injury types were categorized. The data forms are available from the FWC and ACOE upon request. A summary of those data shows that 24 different genera were collected during the previous Miami Harbor blasting project. The species with the highest abundance were white grunts (Haemulon plumier, N = 51), scrawled cowfish (Lactophrys quadricornis, N = 43), and pygmy filefish (Monocanthus setifer, N = 30). The total fish collected during the 23 blasts was 288 or an average of 12.5 fish per blast (range 3 to 38). In observation of the three blasts with the greatest number of fish killed (see Table 4 of ACOE's application) and reviewing the maximum charge weight per delay for the Miami Harbor project, it appears that there is no direct correlation between the charge weight and fish killed that can be determined from such a small sample. Reviewing the 23 blasting events where dead and injured fish were collected after the ``all-clear'' signal was given, no discernable pattern exists. Factors that affect fish mortality include, but are not limited to fish size, body shape (fusiform, etc.), proximity of the blast to a vertical structure like a bulkhead (e.g., see the August 10, 2005 blast event, a much smaller charge weight resulted in a higher fish kill due to the closeness of a bulkhead). Table 3--Confined Blast Maximum Charge Weight and Number of Fish Killed During Miami Harbor 2005 Project ------------------------------------------------------------------------ Max charge Date weight/delay Fish killed (lb) ------------------------------------------------------------------------ July 25, 2005....................... 112 35 July 26, 2005....................... 85 38 August 10, 2005..................... 17 28 ------------------------------------------------------------------------ In the past, to reduce the potential for fish to be injured or killed by the blasting, the resource agencies have requested, and ACOE has allowed that blasting contractors utilize a small, unconfined explosive charge, usually a 1 lb (0.5 kg) booster, detonated about 30 seconds before the main blast, to drive fish away from the blasting zone. It is assumed that noise or pressure generated by the small charge will drive fish from the immediate area, thereby reducing impacts from the larger and potentially more-damaging blast. Blasting companies use this method as a ``good faith effort'' to reduce the potential impacts to aquatic natural resources. The explosives industry [[Page 71527]] recommends firing a ``warning shot'' to frighten fish out of the area before seismic exploration work is begun (Anonymous, 1978 in Keevin et al., 1997). There are limited data available on the effectiveness of fish scare charges at actually reducing the magnitude of fish kills, and the effectiveness may be based on the fish's life history. Keevin et al. (1997) conducted a study to rest if fish scare charges are effective in moving fishes away from blast zones. They used three freshwater species (i.e., largemouth bass (Micropterus salmoides), channel catfish (Ictalurus punctatus), and flathead catfish (Pylodictis olivaris), equipping each fish with an internal radio tag to allow the fishes movements to be tracked before and after the scare charge. Fish movement was compared with a predicted lethal dose (LD) 0% mortality distance for an open water shot (no confinement) for a variety of charge weights. Largemouth bass showed little response to repelling charges and none would have moved from the kill zone calculated for any explosive size. Only one of the flathead catfish and two of the channel catfish would have moved to a safe distance for any blast. This means that only 11% of the fish used in the study would have survived the blast events. These results call into question the true effectiveness of this minimization methodology; however, some argue that based on the monetary value of fish (American Fishery Society, 1992 in Keevin et al., 1997), including the high value commercial or recreational species like snook (Centropomus undecimalis) and tarpon (Megalops atlanticus) found in southeast Florida inlets like Port Everglades, the low cost associated with repelling charge use would be offset if only a few fish moved from the kill zone (Keevin et al., 1997). To calculate the potential loss of prey species from the proposed project area as an impact of the blasting events, the ACOE used a 12.5 fish kill per blasting event estimate based on the Miami Harbor 2005 project, and multiplied it by the 40 shots, reaching a total estimate of 500 floating fish. As stated previously, not all carcasses float to the surface and there is no way to estimate how many carcasses did not float. Using an estimate of 12.5 fish kill per blasting event, and the maximum 600 detonations for the entire multi-year proposed project, the minimum number of fish expected to be killed by the proposed project is approximately 7,500 fish across the entire 28,500 ft (8,686.8 m) long channel footprint, assuming the worst case scenario and the entire channel needs to be blasted. NMFS anticipates that the proposed action will result in no significant impacts to marine mammal habitat beyond rendering the areas immediately around the Port of Miami less desirable shortly after each blasting event and during dredging operations and potentially eliminating a relatively small amount of locally available prey. The impacts will be localized and instantaneous. Impacts to marine mammal habitat, as well as invertebrate and fish species are not expected to be significantly detrimental. Proposed Mitigation In order to issue an Incidental Take Authorization (ITA) under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses. Over the last 10 years, the ACOE's Jacksonville District has been collecting data concerning the effects of confined blasting projects on marine mammals. This effort began in the early 1990's when the ACOE contracted with Dr. Calvin Koyna, Precision Blasting Services, to review previous ACOE blasting projects. The ACOE also received recommendations from the Florida Fish and Wildlife Conservation Commission (FWC, then known as the Florida Department of Natural Resources) and the USFWS to prepare for a harbor deepening project at Port Everglades, Florida, which was conducted in the mid-1980's. The recommendations prepared for the project were specifically aimed at protecting endangered manatees and endangered and threatened sea turtles. The ACOE will develop and implement four zones as protective measures that are based on the use of an unconfined blast. The use of unconfined blast in development of these protective zones for a confined blast will increase the conservation measures afforded marine mammals in the proposed action area. These four zones are referred to as the danger zone (i.e., inner most zone, located closest to the blast), the exclusion zone (i.e., the danger zone plus 500 ft (152.4 m) to add an additional layer of conservatism for marine mammals), the safety zone (i.e., the third zone), and the watch zone (i.e., the outer most zone). All of these zones are noted in Figure 11 of ACOE's IHA application and described in further detail in this section of the document (see below). Of these four zones, only the danger zone, is associated with an MMPA threshold. The danger zone has been determined to be larger than or equal to the threshold for Level B harassment, as defined by the MMPA. Injury (Level A harassment), serious injury, or mortality, as defined by the MMPA, are expected to occur at closer distances to the blasting array within the danger zone. These four zone calculations will be included as part of the specifications package that the contractors will bid on before the project is awarded. As part of the ACOE's Miami Harbor Phase II project, the ACOE monitored the blasting project and collected data on the pressures associated with confined blasts, while employing a formula to calculate buffer and exclusion zones that would protect marine mammals. Results from the pressure monitoring at Miami Harbor Phase II demonstrate that stemming each drill hole reduces the blast pressure entering the water (Nedwell and Thandavamoorthy, 1992; Hemen et al., 2005; Hempen et al., 2007). The following standard conditions have been incorporated into the proposed project specifications to reduce the risk to marine mammals in the proposed project area. While this application is specific to bottlenose dolphins, these specifications are written for all protected species that may be in the proposed project area. If blasting is proposed during the period of November 1 through March 31, significant operational delays should be expected due to the increased likelihood of manatees being present within the proposed project area. If possible, avoid scheduling proposed blasting during the period from November 1 through March 31. In the area where blasting could occur or any area where blasting is required to obtain channel design depth, the following marine mammal protective measures shall be employed, before, during, and after each blast: (A) The FWC, the USFWS, and NMFS must review the contractor's approved Blasting Plan prior to any blasting activities. Copies of this blasting plan shall be provided to FDEP and FWC as a matter of comity. This blasting proposal must include information concerning a watch program and details of the blasting events. This information must be submitted at least 30 days prior to the proposed date of the blast(s) to the following addresses: [[Page 71528]] (1) FWC-ISM, 620 South Meridian Street, Mail Stop 6A, Tallahassee, FL 32399-1600 or [email protected]. (2) NMFS Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910. (3) USFWS, 1339 20th Street, Vero Beach, Florida 32960-3559 or 6620 Southpoint Drive South, Suite 310, Jacksonville, FL 32216-0912 (project location dependent). (4) NMFS Southeast Regional Office, Protected Species Management Branch, 263 13th Avenue South, St. Petersburg, FL 33701. In addition to plan review, Dr. Allen Foley should be notified at the initiation and completion of all in-water blasting ([email protected]). (B) The proposed project specifications shall include at least the following information: (1) A list of Protected Species Observers (PSOs), their qualifications, and positions for the watch, including a map depicting the proposed locations for boat or land-based PSOs. Qualified PSOs must have prior on-the-job experience observing for protected species during previous in-water blasting events where the blasting activities were similar in nature to this project. (2) The amount of explosive charge proposed, the explosive charge's equivalency in TNT, how it will be executed (depth of drilling, stemming, in-water, etc.), a drawing depicting the placement of the charges, size of the exclusion zone, and how it will be marked (also depicted on a map), tide tables for the blasting event(s), and estimates of times and days for blasting events (with an understanding this is an estimate, and may change due to weather, equipment, etc.). (C) For each explosive charge placed, three zones will be calculated, denoted on monitoring reports and provided to PSOs before each blast for incorporation in the watch plan for each planned detonation. All of the zones will be noted by buoys for each of the blasts. These zones are: (1) Danger Zone: The danger zone radius is equal to 260 (79.25 m) times the cube root of the weight of the explosive charge in lbs per delay (equivalent weight of tetryl or TNT). The radius of the danger zone has been determined to be equal to or larger than the distance from the charge to a location where a marine mammal would experience Level B harassment. Danger zone (ft) = 260 (lbs/delay) 1/3 Danger Zone Development: The radius of the danger zone will be calculated to determine the maximum distance from the blast at which mortality to marine mammals is likely to occur. The danger zone was determined by the amount of explosives used within each delay (which can contain multiple boreholes). The original basis of this calculation was to protect human U.S. Navy Seal divers from underwater detonations of underwater mines (Goertner, 1982). Goertner's calculations were based on impacts to terrestrial animals in water when exposed to a detonation suspended in the water column (unconfined blast) as researched by the U.S. Navy in the 1970's (Yelverton et al., 1973; Richmond et al., 1973). Additionally, observations of sea turtle injury and mortality associated with unconfined blasts for the cutting of oil rig structures in the Gulf of Mexico (Young, 1991; Young and O'Keefe, 1994) were also incorporated in this radius beyond its use by the Navy. The State of Florida has adopted this method for the protection of marine mammals (particularly the Florida manatee) within state waters (FWC, 2005) in the document entitled, ``May 2005 Guidelines for the Protection of Marine Mammals and Sea Turtles during the Use of Explosives in the Waters of the State of Florida.'' The U.S. Navy Dive Manual and the FWC Guidelines (2005) set the danger zone formula for an unconfined blast suspended in the water column, which is as follows: R = 260(W) 1/3 Where: R = radius of the danger zone in ft W = weight of the explosive charge in lbs (tetryl or TNT) This formula is conservative for the blasting being done by the ACOE in the Port of Miami since the blast will be confined with the rock and not suspended in the water column. The reduction of impact by confining the shots more than compensates for the presumed higher sensitivity of marine mammals. The ACOE and NMFS believes that the radius of the danger zone, coupled with a strong marine mammal monitoring and protection plan is a conservative, but prudent approach to the protection of marine mammals in the action area. (2) Exclusion Zone: The exclusion zone radius is equal to the danger zone plus a buffer of 500 ft. Detonation will not occur if a marine mammal is known to be (or based on previous sightings, may be) within the exclusion zone. Exclusion zone (ft) = danger zone + 500 ft Exclusion Zone Development: The exclusion zone is not associated with any threshold of take, as defined by the MMPA, as it is larger than the danger zone, where Level B harassment is expected. The exclusion zone was developed during consultations with the FWC during the 2005 to 2006 Phase II dredging and blasting project in Miami Harbor. FWC requested a larger ``no blast'' radius due to the high number of manatees documented in the vicinity of the Port of Miami, particularly utilizing the Bill Sadowski Wildlife Area directly south of the port and north of Virginia Key. The ACOE concurred with this request and added a second zone with an additional 500 ft radius above the calculated radius of the danger zone. To be consistent with the previous blasting activities at Miami Harbor, and since the blasting will take place in the same area, with the same concerns about the proximity of manatees to the blasting sites along Fisherman's Channel, the ACOE proposes to maintain the exclusion zone. (3) Safety Zone: The safety zone is equal to 520 (158.50 m) times the cube root of the weight of the explosive charge in lbs per delay (equivalent weight of tetryl or TNT). Safety zone (ft; two times the size of the danger zone) = 520 (lbs/ delay) 1/3 Safety Zone Development: The safety zone is not associated with any threshold of take, as defined by the MMPA, as it is larger than the danger zone, where Level B harassment is expected. The safety zone was developed to be an area of ``heightened awareness'' of protected species (e.g. dolphins, manatees, and sea turtles) entering the blast area, without triggering a shut-down. This area triggers individual specific monitoring of each individual or group of animals as they transit in, out, or through the designated zones. (4) Watch Zone: The watch zone is three times the radius of the danger zone to ensure that animals entering or traveling close to the exclusion zone are sighted and appropriate actions can be implemented before or as the animal enters the any impact areas (i.e., a delay in blasting activities). Watch zone (ft; three times the size of the Danger Zone) = 3 [260 (lbs/ delay) 1/3] Watch Zone Development: The watch zone is not associated to any threshold of take, as defined by the MMPA, as it is larger than the danger zone, where Level B harassment is expected. The watch zone is the area that can be typically covered by a small helicopter based on the blasting site, flight speed, [[Page 71529]] flight height, and available fuel to ensure effective mitigation- monitoring of the proposed project area. (D) The watch program shall begin at least one hour prior to the scheduled start of blasting to identify the possible presence of marine mammals. The watch program shall continue for at least 30 minutes (min) after detonations are complete. (E) The watch program shall consist of a minimum of six PSOs. Each PSO shall be equipped with a two-way radio that shall be dedicated exclusively to the watch. Extra radios should be available in case of failures. All of the PSOs shall be in close communication with the blasting sub-contractor in order to halt the blast event if the need arises. If all PSOs do not have working radios and cannot contact the primary PSO and the blasting sub-contractor during the pre-blast watch, the blast shall be postponed until all PSOs are in radio contact. PSOs will also be equipped with polarized sunglasses, binoculars, a red flag for back-up visual communication, and a sighting log with a map to record sightings. All blasting events will be weather dependent. Climatic conditions must be suitable for optimal viewing conditions, to be determined by the PSOs. (F) The watch program shall include a continuous aerial survey to be conducted by aircraft, as approved by the Federal Aviation Administration (FAA). The blasting event shall be halted if an animal(s) is sighted within the exclusion zone, within the five min before the explosives are scheduled to be detonated. An ``all clear'' signal must be obtained from the aerial PSO before the detonation can occur. The blasting event shall be halted immediately upon request of any of the PSOs. If animals are sighted, the blast event shall not take place until the animal(s) moves out of the exclusion zone under its own volition. Animals shall not be herded away or intentionally harassed into leaving. Specifically, the animals must not be intentionally approached by project watercraft or aircraft. If the animal(s) is not sighted a second time, the event may resume 30 min after the last sighting. (G) An actual delay in blasting only occurs when a marine mammal was located within the exclusion zone at the point where the blast countdown reaches the T-minus five min. At that time, if an animal is in or near the safety zone, the countdown is put on hold until the zone is completely clear of marine mammals and all 30 min sighting holds have expired. Animal movements into the safety zone prior to that point are monitored closely, but do not necessarily stop the countdown. The exception to this would be stationary animals that do not appear to be moving out of the area or animals that begin moving into the safety zone late in the countdown. For these cases, holds on the T-minus 15 min may be called to keep the shipping channel open and minimize the impact on the Port of Miami operations. (H) The PSOs and contractors shall evaluate any problems encountered during blasting events and logistical solutions shall be presented during blasting events and logistical solutions shall be presented to the Contracting Officer. Corrections to the watch shall be made prior to the next blasting event. If any one of the aforementioned conditions is not met prior to or during the blasting, the watch PSOs shall have the authority to terminate the blasting event, until resolution can be reached with the Contracting Officer. The Contracting Officer will contact FWC, USFWS, and NMFS. (I) If an injured or dead marine mammal is sighted after the blast event, the PSOs on watch shall contact the ACOE and the ACOE will then contact the proper Federal and/or state natural resource agencies. The PSOs shall maintain contact with the injured or dead marine mammal until authorities have arrived. Blasting shall be postponed until consultations are reinitiated and completed, and determinations can be made of the cause of injury or mortality. If blasting injuries are documented, all demolition activities shall cease. The ACOE will then submit a revised blasting plan to FWC, USFWS, and NMFS for review. (J) Within 30 days after completion of all blasting events, the primary PSO shall submit a report the ACOE, who will provide it to the FWC, USFWS, and NMFS, providing a description of the event, number and location of animals seen and what actions were taken when animals were seen. Any problems associated with the event and suggestions for improvements shall also be documented in the report. Proposed Monitoring for Mitigation The ACOE will rely upon the same monitoring protocol developed for the Port of Miami project in 2005 (Barkaszi, 2005) and published in Jordan et al. (2007), which can be found online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The monitoring protocol is summarized here: A watch plan will be formulated based on the required monitoring radii and optimal observation locations. The watch plan will consist of at least five PSOs including at least one aerial PSO, two boat-based PSOs, and two PSOs stationed on the drill barge (see Figures 13, 14, 15, and 16 of the ACOE's IHA application). This watch plan will be consistent with the program that was utilized successfully at Miami Harbor in 2005. The sixth PSO will be placed in the most optimal observation location (boat, barge, or aircraft) on a day-by-day basis depending on the location of the blast and the placement of dredging equipment. This process will ensure complete coverage of the four zones as well as any critical areas. The watch will begin at least one hour prior to each blast and continue for one half hour after each blast (Jordan et al., 2007). The aerial PSO will fly in a turbine engine helicopter (bell jet ranger) with the doors removed. This provided maximum visibility of the watch and safety zones as well as exceptional maneuverability and the needed flexibility for continual surveillance without fuel stops or down time, minimization of delays due to weather or visibility and the ability to deliver post-blast assistance. Additionally, at least six commercial helicopter, small Cessna, and ultra-light companies operate on Key Biscayne, immediately south of the Port of Miami and offer ``flight-seeing'' operations over downtown Miami, Bayfront, and the Port of Miami. Recreational use of ultra-lights launching from Key Biscayne is also common in the area, as are overflights of commercial seaplanes, jet aircraft, and helicopters. The proposed action area being monitored is a high traffic area, surrounded by an urban environment where animals are potentially exposed to multiple overflights daily. ACOE conferred with Mary Jo Barkaszi, owner and chief PSO of ECOES, Inc., a protected species monitoring company with 25 years experience, and has worked on the last five blasting events involving marine mammal concerns for the ACOE throughout the country. All of these blasting events had bottlenose dolphins commonly occur in the project area. Ms. Barkaszi states that in her experience, she has not observed bottlenose dolphins diving or fleeing the area because a helicopter is hovering nearby at 500 ft (pers. comm., September 12, 2011). During monitoring events, the helicopter hovers at 500 ft above the watch zone and only drops below that level when helping to confirm identification of something small in the water, like a sea turtle. The ACOE and NMFS do not expect the incidental take of bottlenose dolphins, by Level B harassment, from helicopter-based [[Page 71530]] monitoring of the blasting operations and the ACOE is not requesting take. Boat-based PSOs are placed on one of two vessels, both of which have attached platforms that place the PSOs eyes at least 10 ft (3 m) above the water surface enabling optimal visibility of the water from the vessels. The boat-based PSOs cover the safety zone where waters are deep enough to safely operate the boats without any impacts to seagrass resources. The shallow seagrass beds south of the proposed project site relegate the PSO boats mainly to the channel east and west of the blast zone. At no time are any of the PSO boats allowed in shallow areas where propellers could potentially impact the fragile seagrass. At times, turbidity in the water may be high and visibility through the water column may be reduced so that animals are not seen below the surface as they should be under normal conditions. This may be more common on an ebb tide. However, animals surfacing in these conditions are still routinely sighted from the air and from the boats, thus the overall PSO program is not compromised, only the degree to which animals were tracked below the surface. Adjustments to the program are made accordingly so that all protected species are confirmed out of the safety zone prior to the T-minus five min, just as they are under normal visual conditions. The waters within the proposed project area are exceptional for observation so that the decreased visibility below the surface during turbid conditions make the waters more typical of other port facilities where PSO programs are also effective throughout the U.S., for example New York and Boston harbors, where this monitoring method has also been employed. All PSOs are equipped with marine-band VHF radios, maps of the blast zone, polarized sunglasses, and appropriate data sheets. Communications among PSOs and with the blaster is of critical importance to the success of the watch plan. The aerial-based PSO is in contact with vessel and drill barge-based PSOs and the drill barge with regular 15 min radio checks throughout the watch period. Constant tracking of animals spotted by any PSO is possible due to the amount and type of PSO coverage and the excellent communications plan. Watch hours are restricted to between two hours after sunrise and one hour before sunset. The watch begins at least one hour prior to the scheduled blast and is continuous throughout the blast. Watch continues for at least 30 min post blast at which time any animals that were seen prior to the blast are visually relocated whenever possible and all PSOs in boats and in the aircraft assisted in cleaning up any blast debris. If any marine mammals are spotted during the watch, the PSO notifies the aerial-based PSO and/or the other PSOs via radio. The animals is located by the aerial-based PSO to determine its range and bearing from the blast array. Initial locations and all subsequent re- acquisitions are plotted on maps. Animals within or approaching the safety zone are tracked by the aerial and boat-based PSOs until they exited the safety zone. Anytime animals are sighted near the safety zone, the drill barge is alerted as to the animal's proximity and some indication of any potential delays it might cause. If any animal(s) is sighted inside the safety zone and not re- acquired, no blasting is authorized until at least 30 min has elapsed since the last sighting of that animal(s). The PSOs on watch will continue the countdown up until the T-minus five min point. At this time, the aerial-based PSO confirms that all animals are outside the safety zone and that all holds have expired prior to clearing the drill barge for the T-minus five min notice. A fish scare charge will be fired at T-minus five min and T-minus one min to minimize effects of the blast on fish that may be in the same area of the blast array by scaring them from the blast area. An actual delay in blasting only occurs when a marine mammal is located within the exclusion zone at the point where the blast countdown reaches the T-minus five min. At that time, if an animal is in or near the safety zone, the countdown is put on hold until the zone is completely clear of marine mammals and all 30 min sighting holds have expired. Animal movements into the safety zone prior to that point are monitored closely, but do not necessarily stop the countdown. The exception to this would be stationary animals that do not appear to be moving out of the area or animals that begin moving into the safety zone late in the countdown. For these cases, holds on the T-minus 15 min may be called for to keep the shipping channel open and minimize the impact on the Port of Miami operations. Proposed Monitoring and Reporting In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth ``requirements pertaining to the monitoring and reporting of such taking.'' The MMPA implanting regulations at 50 CFR 216.104 (a)(13) indicate that requests for IHAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. The ACOE will be conducting a study on fish kill associated with confined underwater blasting that will provide information on the effects of confined underwater blasting on prey species for dolphins in the proposed project area. This study will determine the maximum distance from the blast array, based on charge weight, that fish will not be killed, or injured (the ``lethal dose of zero'' distance) by confined underwater blasting. Similar studies have been completed for open water (unconfined) blasts as cited by Hempen and Keevin (1995), Keevin et al. (1995a, 1995b, and 1997), and Keevin (1998), but no such studies have been conducted for confined underwater blasting. This data will be useful for future confined blasting projects where pisciverous marine mammals are found, since it will allow resource managers to assess the impacts of the blasting activities on marine mammal prey, where species composition and density data have been collected for that project. Additionally, ACOE will provide sighting data for each blast to researchers at NMFS Southeast Fisheries Science Center's marine mammal program and any other researchers working on dolphins in the project area to add to their database of animal usage of the proposed project area. The ACOE will rely upon the same monitoring protocol developed for the Port of Miami project in 2005 (Barkaszi, 2005) and published in Jordan et al. (2007). The ACOE plan to coordinate monitoring with the appropriate Federal and state resource agencies, and will provide copies of all relevant monitoring reports prepared by their contractors. After completion of all detonation and dredging events, the ACOE would submit a summary report to regulatory agencies. Within 30 days after completion of all proposed blasting events, the lead PSO shall submit a report to the ACOE, who will provide it to NMFS. The report will contain the PSO's logs (including names and positions during the blasting events), provide a description of the events, environmental conditions, number and location of animals sighted, the behavioral observations of the marine mammals, and what actions were taken when animals were sighted in the action area of the proposed [[Page 71531]] project. Any problems associated with the even and suggestions for improvements shall also be documented in the report. A draft final report must be submitted to NMFS within 90 days after the conclusion of the proposed blasting activities. The report would include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA, including dates and times of detonations as well as pre- and post-blasting monitoring observations. A final report must be submitted to the Regional Administrator within 30 days after receiving comments from NMFS on the draft final report. If no comments are received from NMFS, the draft final report would be considered to be the final report. In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury, serious injury or mortality, ACOE will immediately cease the specified activities and immediately report the incident to the Chief of the Permits and Conservation, Office of Protected Resources, NMFS at (301) 427-8401 and/or by email to [email protected] and [email protected], and the NMFS Southeast Region Marine Mammal Stranding Network at (877) 433-8299 ([email protected] and [email protected]) (Florida Marine Mammal Stranding Hotline at (888) 404-3922). The report must include the following information: Time, date, and location (latitude/longitude) of the incident; Description of the incident; Status of all noise-generating source use in the 24 hours preceding the incident; Water depth; Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); Description of all marine mammal observations in the 24 hours preceding the incident; Species identification or description of the animal(s) involved; Fate of the animal(s); and Photographs or video footage of the animal(s) (if equipment is available). Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with ACOE to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. ACOE may not resume their activities until notified by NMFS via letter or email, or telephone. In the event that ACOE discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), ACOE will immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at (301) 427-8401, and/or by email to [email protected] and [email protected], and the NMFS Southeast Region Marine Mammal Stranding Network (877) 433-8299) and/or by email to the Southeast Regional Stranding Coordinator ([email protected]) and Southeast Regional Stranding Program Administrator ([email protected]). The report must include the same information identified in the paragraph above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with ACOE to determine whether modifications in the activities are appropriate. In the event that ACOE discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), ACOE will report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at (301) 427-8401, and/or by email to [email protected] and [email protected], and the NMFS Southeast Region Marine Mammal Stranding Network (877) 433-8299), and/ or by email to the Southeast Regional Stranding Coordinator ([email protected]) and Southeast Regional Stranding Program Administrator ([email protected]), within 24 hours of discovery. ACOE will provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Estimated Take by Incidental Harassment Except with respect to certain activities not pertinent here, the MMPA defines ``harassment'' as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. The ACOE is requesting the take of Atlantic bottlenose dolphins, by Level B harassment only, incidental to proposed blasting activities at Miami Harbor. The ACOE notes that multiple IHAs (up to three) will likely be needed and requested for the proposed project due to the duration of the planned blasting activities. See Table 2 (above) for NMFS's threshold criteria and metrics utilized for impact analyses from the use of explosives. Biscayne Bay Stock The Biscayne Bay stock of Atlantic bottlenose dolphins is bounded by Haulover Inlet to the north and Card Sound Bridge to the south. Biscayne Bay is 428 square mi (mi\2\) (1,108.5 square km [km\2\]) in area. The Port of Miami channel, within the boundaries of Biscayne Bay, is approximately 7,200 ft (2,194.6 m) long by 500 ft (152.4 m) wide, with the 3,425 ft (1,044 m) long by 1,400 ft (426.7 m) wide Dodge- Lummus Island turning basin (total area 0.3 mi\2\ [0.8 km\2\]) at the western terminus of Fisherman's Channel. The Port of Miami's channels consist of approximately 0.1% of the entire area of Biscayne Bay. To determine the maximum area of Biscayne Bay in which bottlenose dolphins may experience pressure levels greater than or equal to the 23 psi threshold for explosives less than 2,000 lb (907.2 kg), which has the potential to result in Level B harassment due to temporary threshold shift (TTS) and associated behavioral disruption, the ACOE may utilize a maximum charge weight of 450 lb (204.1 kg) with a calculated danger zone of 1,995 ft (608.1 m). Using this radius, the total area of this zone is approximately 0.1% of Biscayne Bay (12,503,617 ft\2\ [1,161,624 m\2\]). For an open-water, unconfined blast, the pressure edge of the danger zone is expected to be 23 psi. For a fully confined blast, the pressure at the edge of the danger zone is expected to be 6 psi. Utilizing the pressure data collected the Miami Harbor Phase II project in 2005, for a maximum charge weight of 450 lbs in a fully confined blast, the pressure is expected to be 22 psi approximately 700 ft (213.4 m) from the blast, which is below the threshold for Level B harassment (i.e., 23 psi criteria for explosives less than 2,000 lb). However to ensure the protection of marine mammals, and in case of an incident where a detonation is not fully confined, the ACOE assumes that any animal within the boundaries of the [[Page 71532]] danger zone would be taken by Level B harassment. Litz (2007) identified 69 individuals of the Biscayne Bay stock that she classified as the ``northern dolphins'' meaning animals with a mean sighting history from 1994 to 2004 north of 25.61[deg] North. The photo-ID study that Litz's data is based on encompassed an area of approximately 200 mi\2\ (518 km\2\), approximately 50% of Biscayne Bay. The estimated maximum population of animals that may be in the proposed project area is equal to the total number of uniquely identified animals for the entire photo-ID study of Biscayne Bay is 229 individuals (Waring et al., 2010). The best population estimate for Biscayne Bay is 157 individuals, which is based on SEFSC's most consistent survey effort conducted during the 2003 to 2007 photo-ID survey seasons (Waring et al., 2010). Table 4 (below) presents the estimated incidental take, by Level B harassment, for varying charge weight delays likely to be used during the proposed blasting activities and the estimated impacts based on the population estimates used in this analysis. In all cases, less than one bottlenose dolphin is expected to be taken incidental to each blasting event (0.049 minimum to 0.162 maximum). This assumes that the distribution of bottlenose dolphins is equal throughout all of Biscayne Bay. Table 4--The Estimated Incidental Take of Bottlenose Dolphins From the Biscayne Bay Stock, per Each Blasting Event, Based on the Maximum Charge Weight/Delay and Population Density ---------------------------------------------------------------------------------------------------------------- Estimated take Estimated take based on Estimated take based on Maximum (lbs/delay) Danger zone minimum based on best maximum (ft) population population population estimate estimate estimate ---------------------------------------------------------------------------------------------------------------- 450............................................. 1,995 0.049 0.111 0.162 200............................................. 1,525 0.042 0.096 0.140 119............................................. 1,280 0.030 0.038 0.099 50.............................................. 960 0.017 0.038 0.056 17.............................................. 670 0.008 0.019 0.027 ---------------------------------------------------------------------------------------------------------------- The ACOE accessed the NMFS SEFSC photo-ID survey data from 1990 to 2004 in Biscayne Bay via the OBIS-Seamap database (http://seamap.env.duke.edu/) and downloaded the Google Earth overlay of the data. Figure 12 of the ACOE's IHA application shows the general area of the Port of Miami and hot spots of bottlenose dolphin sightings both north and south of Miami Harbor. The data were used to see if sightings across all parts of the Biscayne Bay were equal. This sighting frequency data was not used to calculate the potential take numbers of marine mammals incidental to the proposed blasting activities. Reviewing the data from the Miami Harbor Phase II project in 2005, the ACOE noted that for the 40 detonations, 28% of all animals sighted within the proposed action area (Fisherman's Channel) were bottlenose dolphins (the other animals sighted were manatees and sea turtles). Bottlenose dolphins were sighted inside the exclusion zone 12 times with a total of 30 individuals, with an average of 2.5 animals per sighting out of the total 58 bottlenose dolphins recorded during the project; therefore, groups of dolphins entered the exclusion zone multiple times. Also, dolphins entered the exclusion zone during 30% of the blasting events. Not all of the incidents where dolphins entered the exclusion zone resulted in a project delay, it is dependent upon when during the countdown the animals cross the line demarcating the exclusion zone, and how long they stay in the exclusion zone. During the Miami Harbor Phase II project in 2005, bottlenose dolphins in the exclusion zone triggered delays on four occasions during the 13 blasting events (31%). If the maximum 313 planned detonations for the duration of the one year IHA have an equal percentage of delays as the 2005 project (assuming construction starts in June with blasting June, 2012 to June, 2013 timeframe, with no blasting on Sundays), 94 of the detonations would be delayed for some period of time due to the presence of protected species and 29 of those delays would specifically be for bottlenose dolphins. As a worst case, using the area of the danger zone, and recognizing that the Port of Miami is within the boundaries of the northern area described in Litz (2007), and that the danger zone of any blasting event using equal to or less than 450 lbs/delay will be approximately 0.1% of Biscayne Bay, the ACOE assumes that because animals are not evenly distributed throughout Biscayne Bay, that they travel as single individuals or in groups (as documented in the OBIS-Seamap data and the monitoring data from the Miami Harbor Phase II project in 2005), and that without any monitoring and mitigation measures to minimize potential impacts, up to three bottlenose dolphins from the Biscayne Bay stock may be taken, by Level B harassment, incidental to each blasting event. Assuming that the delays will be spread equally across the proposed action area and using the calculation of 29 delays and that three bottlenose dolphins would be inside the danger zone, 15 of the delayed blasting events would take place in Biscayne Bay since it compromises 52% of the proposed action area. Three bottlenose dolphins times 15 detonations is equal to 45 bottlenose dolphins may be exposed to an underwater sound and pressure over a 1-year period for an IHA incidental to the proposed blasting activities at the Port of Miami. Western North Atlantic Central Florida Coastal Stock The Western North Atlantic Central Florida Coastal stock of bottlenose dolphins is present in the coastal Atlantic waters shallower than 65.6 ft (20 m) in depth between latitude 29.4[deg] North to the western end of Vaca Key (approximately 29.69[deg] North to 81.11[deg] West) where the stock boundary for the Florida Key stock begins, with an area of 3,007 mi\2\ (7,789 km\2\). The outer entrance channel of the Port of Miami is approximately 15,500 ft long (4,724.4 m) by 500 ft wide, which is approximately 0.28 mi\2\ (0.73 km\2\). The Port of Miami's channels consist of approximately 0.009% of the stocks boundaries. The same calculations for assessing the potential impacts to bottlenose dolphins from the proposed blasting activities that were used for the Biscayne Bay stock were also applied to this stock. To determine the maximum area of the coastal Atlantic in which bottlenose dolphins may experience pressure levels greater than or equal to the 23 psi threshold for explosives less than 2,000 lb (907.2 kg), which has the potential to result in Level B harassment due to TTS and associated behavioral disruption, the ACOE may utilize a [[Page 71533]] maximum charge weight of 450 lb (204.1 kg) with a calculated danger zone of 1,995 ft (608.1 m). Using this radius, the total area of this zone is approximately 0.015% of coastal Atlantic where this stock is expected to occur. For an open-water, unconfined blast, the pressure edge of the danger zone is expected to be 23 psi. For a fully confined blast, the pressure at the edge of the danger zone is expected to be 6 psi. Utilizing the pressure data collected the Miami Harbor Phase II project in 2005, for a maximum charge weight of 450 lbs in a fully confined blast, the pressure is expected to be 22 psi approximately 700 ft (213.4 m) from the blast, which is below the threshold for Level B harassment (i.e., 23 psi criteria for explosives less than 2,000 lb). However to ensure the protection of marine mammals, and in case of an incident where a detonation is not fully confined, the ACOE assumes that any animal within the boundaries of the danger zone would be taken by Level B harassment. Waring et al. (2010) estimates the minimum population for the Western North Atlantic Central Florida stock to be 5,094 animals, and estimates the best population to be 6,318 animals. Table 5 (below) presents the estimated incidental take, by Level B harassment, for varying charge weight delays likely to be used during the proposed blasting activities and the estimated impacts based on the population estimates used in this analysis. In all cases, less than one bottlenose dolphin is expected to be taken incidental to each blasting event (0.102 minimum to 0.948 maximum). This assumes that the distribution of bottlenose dolphins is equal throughout all of the stock's range. Table 5--The Estimated Incidental Take of Bottlenose Dolphins From the Western North Atlantic Central Florida Coastal Stock, per Each Blasting Event, Based on the Maximum Charge Weight/Delay and Population Density ------------------------------------------------------------------------ Estimated take based on Estimated take Danger zone minimum based on best Maximum (lbs/delay) (ft) population population estimate estimate (5,094) (6,318) ------------------------------------------------------------------------ 450..................... 1,995 0.764 0.948 200..................... 1,525 0.458042 0.569 119..................... 1,280 0.360 0.379 50...................... 960 0.153 0.190 17...................... 670 0.102 0.126 ------------------------------------------------------------------------ Other than the aerial surveys conducted by NMFS used to develop the stock assessment report, the ACOE has not been able to locate any additional photo-ID or habitat usage analysis. As a result, the ACOE is unable to determine if animals are evenly distributed throughout the stock's range, particularly in the southernmost portion of the stock's range where the proposed action area is located. To be conservative, the ACOE will use the same assumptions for the Western North Atlantic Central Florida Coastal stock as was used for the Biscayne Bay stock. Reviewing the data from the Miami Harbor Phase II project in 2005, the ACOE noted that for the 40 detonations, 28% of all animals sighted within the proposed action area (Fisherman's Channel) were bottlenose dolphins (the other animals sighted were manatees and sea turtles). Bottlenose dolphins were sighted inside the exclusion zone 12 times with a total of 30 individuals, with an average of 2.5 animals per sighting out of the total 58 bottlenose dolphins recorded during the project; therefore, groups of dolphins entered the exclusion zone multiple times. Also, dolphins entered the exclusion zone during 30% of the blasting events. Not all of the incidents where dolphins entered the exclusion zone resulted in a project delay, it is dependent upon when during the countdown the animals cross the line demarcating the exclusion zone, and how long they stay in the exclusion zone. During the Miami Harbor Phase II project in 2005, bottlenose dolphins in the exclusion zone triggered delays on four occasions during the 13 blasting events (31%). If the maximum 313 planned detonations for the duration of the one year IHA have an equal percentage of delays as the 2005 project (assuming construction starts in June with blasting June, 2012 to June, 2013 timeframe, with no blasting on Sundays), 94 of the detonations would be delayed for some period of time due to the presence of protected species and 29 of those delays would specifically be for bottlenose dolphins. As a worst case, using the area of the danger zone, and that the danger zone of any blasting event using equal to or less than 450 lbs/ delay will be approximately 0.009% of the stock's range. The ACOE assumes that because animals are not evenly distributed throughout the stock's range, that they travel as single individuals or in groups (as documented in the monitoring data from the Miami Harbor Phase II project in 2005), and that without any monitoring and mitigation measures to minimize potential impacts, up to three bottlenose dolphins from the Western North Atlantic Central Florida Coastal stock may be taken, by Level B harassment, incidental to each blasting event. Assuming that delays will be spread equally across the proposed action area and using the calculation of 29 delays and that three bottlenose dolphins would be inside the danger zone, 14 of the delayed blasting events would take place in Biscayne Bay since it compromises 48% of the proposed action area. Three bottlenose dolphins times 14 detonations is equal to 42 bottlenose dolphins may be exposed to underwater sound and pressure over a one year period for an IHA incidental to the proposed blasting activities at the Port of Miami. Summary of Requested Estimated Take Without the implementation of the proposed monitoring and mitigation measures, the ACOE has calculated up to 87 bottlenose dolphins (45 from the Biscayne Bay stock, 42 of the Western North Atlantic Central Florida stock) may be potentially taken, by Level B harassment, incidental to the proposed blasting operations over the course of the one year IHA. Due to the protective measures of confined blasts, the implementation of the proposed monitoring and mitigation measures (i.e., danger, exclusion, safety, and watch zones, use of the confined blasting techniques, as well as PSOs), [[Page 71534]] the ACOE is requesting the take, by Level B harassment only, of a total of 22 bottlenose dolphins (12 bottlenose dolphins from the Biscayne Bay stock and 10 bottlenose dolphins from the Western North Atlantic Central Florida Coastal stock). Encouraging and Coordination Research The ACOE will coordinate monitoring with the appropriate Federal and state resource agencies, including NMFS Office of Protected Resources and NMFS Southeast Regional Office's (SERO) Protected Resources Division, and will provide copies of any monitoring reports prepared by the contractors. Negligible Impact and Small Numbers Analysis and Determination NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.'' In making a negligible impact determination, NMFS evaluated factors such as: (1) The number of anticipated injuries, serious injuries, or mortalities; (2) The number, nature, and intensity, and duration of Level B harassment (all relatively limited); (3) The context in which the takes occur (i.e., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/contemporaneous actions when added to the baseline data); (4) The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, and impact relative to the size of the population); (5) Impacts on habitat affecting rates of recruitment or survival; and (6) The effectiveness of monitoring and mitigation measures (i.e., the manner and degree in which the measure is likely to reduce adverse impacts to marine mammals, the likely effectiveness of the measures, and the practicability of implementation). Tables 1, 4, and 5 in this document discloses the habitat, regional abundance, conservation status, density, and the number of individuals potentially exposed to sounds and pressure levels considered the threshold for Level B harassment. Also, there are no known important reproductive or feeding areas in the proposed action area. For reasons stated previously in this document, the specified activities associated with the ACOE's blasting operations are not likely to cause PTS, or other non-auditory injury, serious injury, or death to affected marine mammals. As a result, no take by injury, serious injury, or death is anticipated or authorized, and the potential for temporary or permanent hearing impairment is very low and will be minimized through the incorporation of the proposed monitoring and mitigation measures. No injuries or mortalities are anticipated to occur as a result of the ACOE's blasting operations, and none are proposed to be authorized by NMFS. Approximately 22 Atlantic bottlenose dolphins (12 from the Biscayne Bay stock, 10 from the Western North Atlantic Central Florida Coastal stock) are anticipated to incur short-term, minor, hearing impairment (TTS) and associated behavioral disruption due to the instantaneous duration of the blasting events. While some other species of marine mammals may occur in the proposed project area, only Atlantic bottlenose dolphins are anticipated to be potentially impacted by the ACOE's proposed blasting operations. Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). Consequently, a behavioral response lasting less than one day and not recurring on subsequent days is not considered particularly severe unless it could directly affect reproduction or survival (Southall et al., 2007). The ACOE's proposed action at Miami Harbor includes up to two planned blasting events per day, which are very short in duration, and may potentially result in momentary reactions by marine mammals in the proposed action area. Atlantic bottlenose dolphins are the only species of marine mammals under NMFS jurisdiction that are likely to occur in the action area, they are not listed as threatened or endangered under the ESA, however both stocks are listed as depleted and considered strategic under the MMPA. To protect these marine mammals (and other protected species in the proposed action area), the ACOE must delay operations if animals enter designated zones. Due to the nature, degree, and context of the Level B harassment anticipated and described in this notice (see ``Potential Effects on Marine Mammals'' section above), the activity is not expected to impact rates of recruitment or survival for any affected species or stock. As mentioned previously, NMFS estimates that one species of marine mammals under its jurisdiction could be potentially affected by Level B harassment over the course of the IHA. For each species, these numbers are estimated to be small (i.e., 22 Atlantic bottlenose dolphins, 12 from the Biscayne Bay stock [17% of the estimated minimum population, 7.6% of the estimated best population, and 5.2% of the estimated maximum population], and 10 from the Western North Atlantic Central Florida Coastal stock [0.19% of the estimated minimum population and 0.15% of the estimated best population], less than 17 percent of any of the estimated population sizes based on data in this notice, and has been mitigated to the lowest level practicable through the incorporation of the monitoring and mitigation measures mentioned previously in this document. NMFS had determined, provided that the aforementioned monitoring and mitigation measures are implemented, that the impact of conducting the proposed blasting activities in the Port of Miami from June, 2012 through May, 2012, may result, at worst in a temporary modification in behavior and/or low level physiological effects (Level B harassment) of small numbers of Atlantic bottlenose dolphins. While behavioral modifications, including temporarily vacating the area immediately after blasting operations, may be made by these species to avoid the resultant underwater acoustic disturbance, the availability of alternate areas within these area and the instantaneous and sporadic duration of the blasting activities, have led NMFS to determine that this action will have a negligible impact on the specified geographic region. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS has preliminarily determined that the ACOE`s planned blasting activities will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from the blasting activities will have a negligible impact on the affected species or stocks of marine mammals; and the impacts to affected species or stocks of marine mammals have been mitigated to the lowest level practicable. [[Page 71535]] Impact on Availability of Affected Species for Taking for Subsistence Uses Section 101(a)(5)(D) also requires NMFS to determine that the authorization will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. There is no subsistence hunting for marine mammals in the action area (waters off of the coast of southeast Florida) that implicates MMPA section 101(a)(5)(D). Endangered Species Act Under section 7 of the ESA, the ACOE requested formal consultation with the NMFS SERO, on the proposed project to improve the Port of Miami on September 5, 2002, and reinitiated consultation on January 6, 2011. NMFS SERO determined that the proposed action is likely to adversely affect one ESA-listed species and prepared a Biological Opinion (BiOp) issued on September 8, 2011, that analyzes the project's effects on staghorn coral (Acropora cervicornis). It is NMFS's biological opinion that the action, as proposed, is likely to adversely affect staghorn coral, but is not likely to jeopardize its continued existence or adversely modify its designated critical habitat. Based upon NMFS SERO's updated analysis, NMFS no longer expects the proposed project is likely to adversely affect Johnson's seagrass (Halophila johnsonii) or its designated critical habitat. NMFS SERO has determined that the ESA-listed marine mammals (Blue, fin, sei, humpback, North Atlantic right, and sperm whales), smalltooth sawfish (Pristis pectinata), and leatherback sea turtles (Dermochelys coriacea) are not likely to be adversely affected by the proposed action. Previous NMFS biological opinions have determined that hopper dredges may affect hawksbill (Eretmochelys imbricata), Kemp's ridley (Lepidochelys kempii), green (Chelonia mydas), and loggerhead (Caretta caretta) sea turtles through entrainment by the draghead. Any incidental take of loggerhead, green, Kemp's ridley, or hawksbill sea turtles due to hopper dredging has been previously authorized in NMFS's 1997 South Atlantic Regional BiOp on hopper dredging along the South Atlantic coast. The ACOE is currently in re-initiation of consultation with NMFS on the South Atlantic Regional BiOp. When a new BiOp is issued by NMFS, the Terms and Conditions of that South Atlantic Regional BiOp will be incorporated into the proposed project. National Environmental Policy Act (NEPA) The ACOE has prepared a ``Final Environmental Impact Statement on the Navigation Study for Miami Harbor, Miami-Dade County, Florida,'' and a Record of Decision for the proposed project was signed on May 22, 2006; however, this document does not analyze NMFS's action, the issuance of the IHA for the ACOE's proposed activity. NMFS, after independently reviewing and evaluating the document for sufficiency and compliance with the CEQ regulations and NOAA Administrative Order (NAO) 216-6 Sec. 5.09(d), has begun conducting a separate NEPA analysis, which analyzes the project's purpose and need, alternatives, affected environment, and environmental effects for the proposed action. NMFS will decide whether or not to sign a Finding of No Significant Impact (FONSI) prior to making a determination on the issuance of the IHA. Proposed Authorization NMFS proposes to issue an IHA to the ACOE for conducting blasting operations at the Port of Miami, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The duration of the IHA would not exceed one year from the date of its issuance. Information Solicited NMFS requests interested persons to submit comments and information concerning this proposed project and NMFS's preliminary determination of issuing an IHA (see ADDRESSES). Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of this application to the Marine Mammal Commission and its Committee of Scientific Advisors. Dated: November 14, 2011. James H. Lecky, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2011-29886 Filed 11-17-11; 8:45 am] BILLING CODE 3510-22-P