Federal Register, Volume 79 Issue 213 (Tuesday, November 4, 2014)

[Federal Register Volume 79, Number 213 (Tuesday, November 4, 2014)]
[Notices]
[Pages 65378-65386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26195]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD445

Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to a Pier Replacement Project

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that we have issued an incidental harassment authorization (IHA) to the
U.S. Navy (Navy) to incidentally harass,

[[Page 65379]]

by Level B harassment only, six species of marine mammals during
construction activities associated with a pier replacement project at
Naval Base Point Loma, San Diego, California.

DATES: This authorization is effective from October 8, 2014, through
October 7, 2015.

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

SUPPLEMENTARY INFORMATION:

Availability

An electronic copy of the Navy's application and supporting
documents, as well as a list of the references cited in this document,
may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. A memorandum describing our
adoption of the Navy's Environmental Assessment (2013) and our
associated Finding of No Significant Impact, prepared pursuant to the
National Environmental Policy Act, are also available at the same site.
In case of problems accessing these documents, please call the contact
listed above (see FOR FURTHER INFORMATION CONTACT).

Background

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
as `` . . . an impact resulting from the specified activity that cannot
be reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.''
Section 101(a)(5)(D) of the MMPA established an expedited process
by which citizens of the U.S. can apply for an authorization to
incidentally take small numbers of marine mammals by harassment.
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of
an application followed by a 30-day public notice and comment period on
any proposed authorizations for the incidental harassment of marine
mammals. Within 45 days of the close of the 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].''

Summary of Request

On July 8, 2014, we received a request from the Navy for
authorization to take marine mammals incidental to pile installation
and removal associated with a pier replacement project in San Diego Bay
at Naval Base Point Loma in San Diego, CA (NBPL), followed on July 14,
2014, by a draft monitoring report for activities conducted under the
previous IHA issued for this project. We reviewed these documents and
provided a request for additional information to the Navy on August 5,
2014; the Navy submitted revised versions of the request on August 14
and August 19, 2014, the latter of which we deemed adequate and
complete. The pier replacement project is planned to occur over four
years; this IHA is valid only for the second year of work, from October
8, 2014, through October 7, 2015. Hereafter, use of the generic term
``pile driving'' may refer to both pile installation and removal unless
otherwise noted.
The use of both vibratory and impact pile driving during the pier
replacement project is expected to produce underwater sound at levels
that have the potential to result in behavioral harassment of marine
mammals. Species with the expected potential to be present during all
or a portion of the in-water work window include the California sea
lion (Zalophus californianus), harbor seal (Phoca vitulina richardii),
bottlenose dolphin (Tursiops truncatus truncatus), gray whale
(Eschrichtius robustus), and either short-beaked or long-beaked common
dolphins (Delphinus spp.). California sea lions are present year-round
and are common in the project area, while bottlenose dolphins may be
present year-round, but sightings are highly variable in Navy marine
mammal surveys of northern San Diego Bay. Harbor seals are also common
but have limited occurrence in the project area in comparison with sea
lions. Gray whales may be observed in San Diego Bay sporadically during
migration periods. Common dolphins are known to occur in nearshore
waters outside San Diego Bay, but are only rarely observed near or in
the bay.
This is the second such IHA issued to the Navy for this project,
following the IHA issued effective from September 1, 2013, through
August 31, 2014 (78 FR 44539). A monitoring report for the first IHA is
available on the Internet at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm, and it provides environmental information related to
issuance of this IHA.

Description of the Specified Activity

Overview

NBPL provides berthing and support services for Navy submarines and
other fleet assets. The existing fuel pier serves as a fuel depot for
loading and unloading tankers and Navy underway replenishment vessels
that refuel ships at sea (``oilers''), as well as transferring fuel to
local replenishment vessels and other small craft operating in San
Diego Bay, and is the only active Navy fueling facility in southern
California. Portions of the pier are over one hundred years old, while
the newer segment was constructed in 1942. The pier as a whole is
significantly past its design service life and does not meet current
construction standards.
Over the course of four years, the Navy plans to demolish and
remove the existing pier and associated pipelines and appurtenances
while simultaneously replacing it with a generally similar structure
that meets relevant standards for seismic strength and is designed to
better accommodate modern Navy ships. Demolition and construction are
planned to occur in two phases to maintain the fueling capabilities of
the existing pier while the new pier is being constructed. During the
second year of construction (the specified activity considered under
this IHA), approximately 272 piles (18- to 36-in steel pipe piles) will
be installed and 402 piles will be removed (via multiple methods) over
the course of a maximum 135 in-water construction days. The maximum 135
days of in-water construction pertains to impact and vibratory pile
driving, as well as pneumatic chipping (unless required project
monitoring

[[Page 65380]]

demonstrates that this activity does not have the potential to result
in the incidental take of marine mammals). Pile removal may occur via
other methods beyond this 135-day limit. All steel piles will be driven
with a vibratory hammer for their initial embedment depths and finished
with an impact hammer, as necessary.
The planned actions with the potential to incidentally harass
marine mammals within the waters adjacent to NBPL are vibratory and
impact pile installation and removal of piles via vibratory hammer or
pneumatic chipper. Concurrent use of multiple pile driving rigs is not
planned; however, pile removal conducted as part of demolition
activities (which could occur via a number of techniques other than use
of a vibratory hammer) is expected to occur concurrently with pile
installation conducted as part of construction activities.

Dates and Duration

The entire project is scheduled to occur from 2013-17; the planned
activities that would occur during the period of validity for this IHA,
during the second year of work, would occur for one year. Under the
terms of a memorandum of understanding (MOU) between the Navy and the
U.S. Fish and Wildlife Service (FWS), all noise- and turbidity-
producing in-water activities in designated least tern foraging habitat
are to be avoided during the period when least terns are present and
engaged in nesting and foraging (a window from approximately September
15 through April 1). However, the Navy may extend that window,
depending on the nature of the activity and with approval from FWS and
it is possible that in-water work, as described below, could occur at
any time during the period of validity of this IHA. We expect that in-
water work would primarily occur during the October 1-April 1 period.
In-water pile driving work is limited to 135 days in total under this
IHA. Pile driving will occur during normal working hours (approximately
7 a.m. to 4 p.m.).

Specific Geographic Region

NBPL is located on the peninsula of Point Loma near the mouth and
along the northern edge of San Diego Bay (see Figures 1-1 and 1-2 in
the Navy's application). San Diego Bay is a narrow, crescent-shaped
natural embayment oriented northwest-southeast with an approximate
length of 24 km and a total area of roughly 4,500 ha. The width of the
bay ranges from 0.3 to 5.8 km, and depths range from 23 m mean lower
low water (MLLW) near the tip of Ballast Point to less than 2 m at the
southern end (see Figure 2-1 of the Navy's application). San Diego Bay
is a heavily urbanized area with a mix of industrial, military, and
recreational uses. The northern and central portions of the bay have
been shaped by historic dredging to support large ship navigation.
Dredging occurs as necessary to maintain constant depth within the
navigation channel. Outside the navigation channel, the bay floor
consists of platforms at depths that vary slightly. Sediments in
northern San Diego Bay are relatively sandy, as tidal currents tend to
keep the finer silt and clay fractions in suspension, except in harbors
and elsewhere in the lee of structures, where water movement is
diminished. Much of the shoreline consists of riprap and manmade
structures. San Diego Bay is heavily used by commercial, recreational,
and military vessels, with an average of over 80,000 vessel movements
(in or out of the bay) per year (not including recreational boating
within the Bay) (see Table 2-2 of the Navy's application). For more
information about the specific geographic region, please see section
2.3 of the Navy's application.

Detailed Description of Activities

In order to provide context, we described the entire project in our
Federal Register notice of proposed authorization associated with the
first-year IHA (78 FR 30873; May 23, 2013). Please see that document
for an overview of the entire fuel pier replacement project, or see the
Navy's Environmental Assessment (2013) for more detail. In the notice
of proposed authorization associated with the second-year IHA (79 FR
53026; September 5, 2014) we provided an overview of relevant
construction methods before describing only the specific project
portions scheduled for completion during the second work window. We do
not repeat that information here; please refer to that document for
more information. Approximately 498 piles in total are planned to be
installed for the project, including steel, concrete, and plastic
piles. For the second year of work, approximately 272 piles will be
installed (all steel pipe piles, 18- to 36-in). Tables 1 and 2 detail
the piles to be installed and removed, respectively, under this IHA.

Table 1--Details of Piles To Be Installed
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Planned Number per pile diameter (in)
Purpose Location Planned timing number of ---------------------------------------------------
days 18 24 30 36
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Indicator Pile Program............... Outboard side of Fall 2014.............. 1 0 0 0 2
existing pier.
Temporary dolphin.................... South of existing pier. Fall 2014.............. 5 0 0 10 0
Temporary shoring piles.............. Existing pier approach Fall 2014.............. 5 4 0 0 0
and intersection.
Temporary trestle piles.............. North of new approach Fall 2014.............. 14 0 16 0 0
trestle.
Abutment piles....................... New pier, along Winter 2014-15......... 10 0 0 0 \2\ 18
shoreline.
Approach pier........................ New pier footprint..... Fall 2014-Spring 2015.. 90 0 0 0 104
Fuel pier............................ New pier footprint..... Fall 2014.............. 90 0 0 0 95
Permanent dolphins................... North of existing pier. Spring 2015............ 10 0 0 23 0
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[[Page 65381]]

Totals--272 piles................ ....................... Fall 2014-Spring 2015.. \1\ 135 4 16 33 219
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\1\ Numbers of piles, timing, and number of days associated with any particular component of work are subject to change. However, the total of 135 days
in-water pile driving is an absolute maximum.
\2\ Land-based abutment piles will not be monitored.

Table 2--Details of Piles To Be Removed
------------------------------------------------------------------------
Pile type Number
------------------------------------------------------------------------
Concrete fender piles (14-, 18-, and 24-in)................ 65
Plastic fender piles (13-in)............................... 29
Timber piles (12-in)....................................... 286
Concrete-filled steel caissons............................. 22
------------
Total.................................................. 402
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Description of Work Accomplished

During the first in-water work season, two primary activities were
conducted: Relocation of the Marine Mammal Program and the Indicator
Pile Program. These activities were described in detail in our notice
of proposed authorization associated with the second-year IHA (79 FR
53026; September 5, 2014); please see that document for more
information.

Comments and Responses

We published a notice of receipt of the Navy's application and
proposed IHA in the Federal Register on September 5, 2014 (79 FR
53026). We received a letter from the Marine Mammal Commission; the
Commission's comments and our responses are provided here, and the
comments have been posted on the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.
San Diego Bay is a busy industrial and recreational water body and,
in recognition of the likelihood that ambient sound levels in the bay
exceed NMFS' regulatory threshold for continuous noise (i.e., 120-dB
rms), the Navy has been measuring ambient sound in the bay in the
absence of construction activity per NMFS' guidance (NMFS, 2012).
Results of that effort to date show that ambient sound is indeed louder
than 120 dB rms, with daily averages of 128 dB rms measured in the
vicinity of the project site during the Navy's indicator pile program
conducted as part of the first year of the project; therefore, we
substitute the louder value for use in delineating the zones employed
in the Navy's mitigation and monitoring strategy (as described in our
notice of proposed authorization). The Commission's comments concern
the way we use those data for that purpose and the way in which we
continue the acoustic monitoring effort designed to further our
understanding of ambient sound levels.
Comment 1: The Commission recommends that we require the Navy to
use the mean ambient sound level minus at least one standard deviation
(based on the three recording periods interspersed throughout the work
window) down to the 120-dB re 1 [mu]Pa threshold as a basis for
establishing the Level B harassment zone to fulfill its monitoring and
reporting requirements for the authorization and to inform future
authorizations.
Response: We disagree with this recommendation. The 128-dB value is
reported in accordance with NMFS' 2012 guidance document (NMFS, 2012)
on data collection methods to characterize underwater background sound,
which says that in order to characterize average conditions, the dB rms
level that occurs at least fifty percent of the time should be used as
the average background sound in consultations under the MMPA;
therefore, the value is appropriately representative of existing data
regarding background sound and is consistent with NMFS' guidance.
Comment 2: The Commission recommends that we require the Navy to
measure ambient sound levels both to the north and south of the fuel
pier site to further refine the spatial differences in ambient sound
levels near the project site, and that similar spatially-distributed
methods should be used for determining sound propagation in the far-
field during installation and removal of various types and sizes of
piles to identify the distance at which sound from those activities
become indistinguishable from ambient.
Response: We agree with the Commission's second recommendation and
have discussed it with the Navy. Acoustic monitoring performed under
this IHA will be conducted in accordance with the Commission's
recommendation.

Description of Marine Mammals in the Area of the Specified Activity

There are five marine mammal species which are either resident,
have known seasonal occurrence, or have been observed recently in San
Diego Bay, including the California sea lion, harbor seal, bottlenose
dolphin, common dolphin, and gray whale. Note that common dolphins
could be either short-beaked (Delphinus delphis delphis) or long-beaked
(D. capensis capensis). While it is likely that common dolphins
observed in the project area would be long-beaked, as it is the most
frequently stranded species in the area from San Diego Bay to the U.S.-
Mexico border (Danil and St. Leger, 2011), the species' distributions
overlap, and it is unlikely that observers would be able to
differentiate them in the field. Therefore, we consider that any common
dolphins observed--and any incidental take of common dolphins--could be
either species. Navy records and other survey results indicate that
other species that occur in the Southern California Bight may have the
potential for isolated occurrence within San Diego Bay or just
offshore. The Pacific white-sided dolphin (Lagenorhynchus obliquidens)
has been sighted along a previously used transect on the opposite side
of the Point Loma peninsula (Merkel and Associates, 2008). Risso's
dolphin (Grampus griseus) is fairly common in southern California
coastal waters (e.g., Campbell et al., 2010), but has not been seen in
San Diego Bay. These species have not been observed near the project
area and are not expected to occur there, and, given the unlikelihood
of their exposure to sound generated from the project, are not
considered further.
We have reviewed the Navy's detailed species descriptions,
including life history information, for accuracy and completeness and
refer the reader to Sections 3 and 4 of the Navy's application instead
of reprinting the information here. Please also refer to NMFS' Web site
(www.nmfs.noaa.gov/pr/species/mammals) for generalized species accounts
and to the Navy's

[[Page 65382]]

Marine Resource Assessment for the Southern California and Point Mugu
Operating Areas, which provides information regarding the biology and
behavior of the marine resources that may occur in those operating
areas (DoN, 2008). The document is publicly available at
www.navfac.navy.mil/products_and_services/ev/products_and_services/marine_resources/marine_resource_assessments.html (accessed August 23,
2014). In addition, we provided information for the potentially
affected stocks, including details of stock-wide status, trends, and
threats, in our Federal Register notice of proposed authorization
associated with the first-year IHA (78 FR 30873; May 23, 2013) and
refer the reader to that document rather than reprinting the
information here. We provided additional information for marine mammals
with potential for occurrence in the area of the specified activity in
our Federal Register notice of proposed authorization (79 FR 53026;
September 5, 2014).
Table 3 lists the marine mammal species with expected potential for
occurrence in the vicinity of NBPL during the project timeframe and
summarizes key information regarding stock status and abundance. See
also Figure 3-2 of the Navy's application for observed occurrence of
marine mammals in the project area. Taxonomically, we follow Committee
on Taxonomy (2014). Please see NMFS' Stock Assessment Reports (SARs),
available at www.nmfs.noaa.gov/pr/sars, for more detailed accounts of
these stocks' status and abundance.
All potentially affected species are addressed in the Pacific SARs
(Carretta et al., 2014).

Table 3--Marine Mammals Potentially Present in the Vicinity of NBPL
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Stock abundance (CV, Annual Relative occurrence in
Species Stock ESA/MMPA Status; Nmin, most recent PBR \3\ M/SI San Diego Bay; season
Strategic (Y/N) \1\ abundance survey) \2\ \4\ of occurrence
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Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae:
Gray whale...................... Eastern North Pacific.. --; N................ 19,126 (0.071; 18,017; 558 \6\127 Rare migratory
2007). visitor; late winter.
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Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
Bottlenose dolphin.............. California coastal..... --; N................ 323 \5\ (0.13; 290; 2.4 0.2 Occasional; year-
2005). round.
Short-beaked common dolphin..... California/Oregon/ --; N................ 411,211 (0.21; 343,990; 3,440 64 Rare; year-round (but
Washington. 2008). more common in warm
season).
Long-beaked common dolphin...... California............. --; N................ 107,016 (0.42; 76,224; 610 13.8 Rare; year-round (but
2009). more common in warm
season).
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Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
sea lions):
California sea lion............. U.S.................... --; N................ 296,750 (n/a; 153,337; 9,200 >=431 Abundant; year-round.
2008).
Family Phocidae (earless seals):
Harbor seal..................... California............. --; N................ 30,196 (0.157; 26,667; 1,600 31 Uncommon and
2009). localized; year-
round.
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\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (--) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks of
pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge
of the species' (or similar species') life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the
minimum abundance may represent actual counts of all animals ashore.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value.

[[Page 65383]]

\5\ This value is based on photographic mark-recapture surveys conducted along the San Diego coast in 2004-05, but is considered a likely underestimate,
as it does not reflect that approximately 35 percent of dolphins encountered lack identifiable dorsal fin marks (Defran and Weller, 1999). If 35
percent of all animals lack distinguishing marks, then the true population size would be closer to 450-500 animals (Carretta et al., 2014).
\6\ Includes annual Russian harvest of 123 whales.

Potential Effects of the Specified Activity on Marine Mammals

In our Federal Register notice of proposed authorization associated
with the first-year IHA (78 FR 30873; May 23, 2013), we described in
detail the potential effects of the Navy's planned activity on marine
mammals, including general background information on sound and marine
mammal hearing and a description of sound sources and ambient sound.
Rather than reprint the information here, we refer the reader to that
document. We also provided brief definitions of relevant acoustic
terminology in our notice of proposed authorization associated with the
second-year IHA (79 FR 53026; September 5, 2014).

Anticipated Effects on Habitat

We described potential impacts to marine mammal habitat, including
effects to prey and to foraging habitat, in detail in our Federal
Register notice of proposed authorization associated with the first-
year IHA (78 FR 30873; May 23, 2013). In summary, given the short daily
duration of sound associated with individual pile driving events and
the relatively small areas being affected, pile driving activities
associated with the planned action are not likely to have a permanent,
adverse effect on any fish habitat, or populations of fish species. The
area around NBPL is heavily altered with significant levels of
industrial and recreational activity, and is unlikely to harbor
significant amounts of forage fish. Thus, any impacts to marine mammal
habitat are not expected to cause significant or long-term consequences
for individual marine mammals or their populations.

Mitigation

In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to such
activity, and other means of effecting the least practicable impact on
such species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of such species or stock for taking for certain
subsistence uses.
We described a proposed suite of mitigation measures in our Federal
Register notice of proposed authorization (79 FR 53026; September 5,
2014). Those mitigation measures were included as conditions in the IHA
issued to the Navy, which is available on the Internet at:
www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. Please review
those documents for information about the specific measures required of
the Navy.
We carefully evaluated the Navy's proposed mitigation measures and
considered their effectiveness in past implementation to determine
whether they are likely to effect the least practicable impact on the
affected marine mammal species and stocks and their habitat. Our
evaluation of potential measures included consideration of the
following factors in relation to one another: (1) The manner in which,
and the degree to which, the successful implementation of the measure
is expected to minimize adverse impacts to marine mammals; (2) the
proven or likely efficacy of the specific measure to minimize adverse
impacts as planned; and (3) the practicability of the measure for
applicant implementation.
Based on our evaluation of the Navy's proposed measures, we have
determined that the mitigation measures described in our notice of
proposed authorization provide the means of effecting the least
practicable impact on marine mammal species or stocks and their
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance.

Monitoring and Reporting

In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking.'' The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for
incidental take authorizations must include the suggested means of
accomplishing the necessary monitoring and reporting that will result
in increased knowledge of the species and of the level of taking or
impacts on populations of marine mammals that are expected to be
present in the proposed action area.
The Navy submitted an Acoustic and Marine Species Monitoring Plan
(available at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm). We described the monitoring requirements in detail
in our Federal Register notice of proposed authorization (79 FR 53026;
September 5, 2014). Those requirements were included as conditions in
the IHA issued to the Navy, available at the same location on the
Internet. Please review those documents for information about the
specific measures required of the Navy. In addition, monitoring results
from the previous IHA were described in detail in our notice of
proposed authorization and are not repeated here.
We made one substantive change from the proposed measures described
in our Federal Register notice of proposed authorization to those
included in the final IHA. Instead of requiring at least three vessel-
based observers for all pile driving activities, as called for in the
proposed IHA, the Navy will be required to have a minimum of two
vessel-based observers, and a total of three to seven observers, for
all pile driving activities. The total three to seven observers
includes (1) a minimum of one observer stationed at the active pile
driving rig in order to monitor the shutdown zones; (2) a minimum of
two vessel-based observers; and (3) a minimum of one shore-based
observer located at the pier work site during impact pile driving. This
change was made to more accurately reflect changes made to the second-
year monitoring plan in response to lessons learned during the first
year of monitoring, and we believe it to represent the most effective
alignment of monitoring assets. It is not expected to impact observer
coverage and is expected to increase the effectiveness of the
monitoring, and thus does not change our analysis or conclusions
described in the Federal Register notice announcing our proposed IHA.

Estimated Take by Incidental Harassment

Except with respect to certain activities not pertinent here,
section 3(18) of 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].''
All anticipated takes would be by Level B harassment resulting from
vibratory and impact pile driving and involving temporary changes in

[[Page 65384]]

behavior. The planned mitigation and monitoring measures are expected
to minimize the possibility of injurious or lethal takes such that take
by Level A harassment, serious injury, or mortality is considered
extremely unlikely. However, it is unlikely that injurious or lethal
takes would occur even in the absence of the planned mitigation and
monitoring measures.
If a marine mammal responds to a stimulus by changing its behavior
(e.g., through relatively minor changes in locomotion direction/speed
or vocalization behavior), the response may or may not constitute
taking at the individual level, and is unlikely to affect the stock or
the species as a whole. However, if a sound source displaces marine
mammals from an important feeding or breeding area for a prolonged
period, impacts on animals or on the stock or species could potentially
be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Given
the many uncertainties in predicting the quantity and types of impacts
of sound on marine mammals, it is common practice to estimate how many
animals are likely to be present within a particular distance of a
given activity, or exposed to a particular level of sound.
This practice potentially overestimates the numbers of marine
mammals taken, in part because it is often difficult to distinguish
between the individuals harassed and incidents of harassment. In
particular, for stationary activities, it is more likely that some
smaller number of individuals may accrue a number of incidents of
harassment per individual than for each incident to accrue to a new
individual, especially if those individuals display some degree of
residency or site fidelity and the impetus to use the site (e.g.,
because of foraging opportunities) is stronger than the deterrence
presented by the harassing stimulus.
The project area is not believed to be particularly important
habitat for marine mammals, nor is it considered an area frequented by
marine mammals, with the exception of California sea lions, which are
attracted to nearby haul-out opportunities. Sightings of other species
are relatively rare. Therefore, behavioral disturbances that could
result from anthropogenic sound associated with these activities are
expected to affect only a relatively small number of individual marine
mammals, although those effects could be recurring over the life of the
project if the same individuals remain in the project vicinity.
The Navy requested authorization for the potential incidental
taking of small numbers of California sea lions, harbor seals,
bottlenose dolphins, common dolphins, and gray whales in San Diego Bay
and nearby waters that may result from pile driving during construction
activities associated with the fuel pier replacement project. In order
to estimate the potential incidents of take that may occur incidental
to the specified activity, we first estimated the extent of the sound
field that may be produced by the activity and then considered that in
combination with information about marine mammal density or abundance
in the project area. We provided detailed information on applicable
sound thresholds for determining effects to marine mammals and
described the information used in estimating the sound fields, the
available marine mammal density or abundance information, and the
method of estimating potential incidents of take, in our Federal
Register notice of proposed authorization (79 FR 53026; September 5,
2014). That information is unchanged, and our take estimates were
calculated in the same manner and on the basis of the same information
as what was described in the Federal Register notice. Measured
distances to relevant thresholds are shown in Table 4 and total
estimated incidents of take are shown in Table 5. Please see our
Federal Register notice of proposed authorization (79 FR 53026;
September 5, 2014) for full details of the process and information used
in estimating potential incidents of take.

Table 4--Measured Distances to Relevant Thresholds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Distance to threshold in meters
Activity -----------------------------------------------------------------------------------------------
190 dB 180 dB 160 dB 120 dB 100 dB 90 dB
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact driving, steel piles (measured).................. 75 450 2,500 n/a 71 233
Vibratory driving, steel piles (measured)............... <10 <10 n/a 3,000 n/a n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------

Table 5--Calculations for Incidental Take Estimation
----------------------------------------------------------------------------------------------------------------
Total proposed authorized takes \3\ (% of total
Species Abundance \1\ stock)
----------------------------------------------------------------------------------------------------------------
California sea lion........................... 175 23,625 (8.0).
Harbor seal................................... 7 945 (3.1).
Bottlenose dolphin............................ 3 405 (81.0).\4\
Common dolphin................................ 6 810 (0.8 [LB]/0.2 [SB]).\5\
Gray whale.................................... \2\ 1 90 (0.5).
----------------------------------------------------------------------------------------------------------------
\1\ Best available species- and season-specific density estimates were described in our notice of proposed
authorization. With the exception of the gray whale (see footnote 2 below), we have determined that in all
cases a site-specific abundance estimate is the most appropriate information to use in estimating take.
\2\ Product of density (0.115 animals/km\2\) and largest ZOI (5.7 km\2\) rounded to nearest whole number.
\3\ Best abundance numbers multiplied by expected days of activity (135) to produce take estimate. Calculation
for gray whale assumes ninety days rather than 135.
\4\ Total stock assumed to be 500 for purposes of calculation. See Table 3.
\5\ LB = long-beaked; SB = short-beaked.

[[Page 65385]]

Analyses and Determinations

Negligible Impact Analysis

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.'' A negligible impact finding is based on the
lack of likely adverse effects on annual rates of recruitment or
survival (i.e., population-level effects). An estimate of the number of
Level B harassment takes alone is not enough information on which to
base an impact determination. In addition to considering estimates of
the number of marine mammals that might be ``taken'' through behavioral
harassment, we consider other factors, such as the likely nature of any
responses (e.g., intensity, duration), the context of any responses
(e.g., critical reproductive time or location, migration), as well as
the number and nature of estimated Level A harassment takes, the number
of estimated mortalities, and effects on habitat.
Pile driving activities associated with the pier replacement
project, as outlined previously, have the potential to disturb or
displace marine mammals. Specifically, the specified activities may
result in take, in the form of Level B harassment (behavioral
disturbance) only, from underwater sounds generated from pile driving.
Potential takes could occur if individuals of these species are present
in the ensonified zone when pile driving is happening.
No injury, serious injury, or mortality is anticipated given the
nature of the activity and measures designed to minimize the
possibility of injury to marine mammals. The potential for these
outcomes is minimized through the construction method and the
implementation of the planned mitigation measures. Specifically,
vibratory hammers will be the primary method of installation, and this
activity does not have significant potential to cause injury to marine
mammals due to the relatively low source levels produced (site-specific
acoustic monitoring data show no source level measurements above 180 dB
rms) and the lack of potentially injurious source characteristics.
Impact pile driving produces short, sharp pulses with higher peak
levels and much sharper rise time to reach those peaks. When impact
driving is necessary, required measures (implementation of shutdown
zones) significantly reduce any possibility of injury. Given sufficient
``notice'' through use of soft start (for impact driving), marine
mammals are expected to move away from a sound source that is annoying
prior to its becoming potentially injurious. The likelihood that marine
mammal detection ability by trained observers is high under the
environmental conditions described for San Diego Bay (approaching one
hundred percent detection rate, as described by trained biologists
conducting site-specific surveys) further enables the implementation of
shutdowns to avoid injury, serious injury, or mortality.
Effects on individuals that are taken by Level B harassment, on the
basis of reports in the literature as well as monitoring from other
similar activities, will likely be limited to reactions such as
increased swimming speeds, increased surfacing time, or decreased
foraging (if such activity were occurring) (e.g., Thorson and Reyff,
2006; HDR, 2012; Lerma, 2014). Most likely, individuals will simply
move away from the sound source and be temporarily displaced from the
areas of pile driving, although even this reaction has been observed
primarily only in association with impact pile driving. In response to
vibratory driving, pinnipeds (which may become somewhat habituated to
human activity in industrial or urban waterways) have been observed to
orient towards and sometimes move towards the sound. The pile driving
activities analyzed here are similar to, or less impactful than,
numerous other construction activities conducted in San Francisco Bay
and in the Puget Sound region, which have taken place with no reported
injuries or mortality to marine mammals, and no known long-term adverse
consequences from behavioral harassment. Repeated exposures of
individuals to levels of sound that may cause Level B harassment are
unlikely to result in hearing impairment or to significantly disrupt
foraging behavior. Thus, even repeated Level B harassment of some small
subset of the overall stock is unlikely to result in any significant
realized decrease in fitness for the affected individuals, and thus
would not result in any adverse impact to the stock as a whole. Level B
harassment will be reduced to the level of least practicable impact
through use of mitigation measures described herein and, if sound
produced by project activities is sufficiently disturbing, animals are
likely to simply avoid the project area while the activity is
occurring.
In summary, this negligible impact analysis is founded on the
following factors: (1) The possibility of injury, serious injury, or
mortality may reasonably be considered discountable; (2) the
anticipated incidents of Level B harassment consist of, at worst,
temporary modifications in behavior; (3) the absence of any significant
habitat within the project area, including rookeries, significant haul-
outs, or known areas or features of special significance for foraging
or reproduction; and (4) the presumed efficacy of the planned
mitigation measures in reducing the effects of the specified activity
to the level of least practicable impact. In addition, these stocks are
not listed under the ESA or considered depleted under the MMPA. In
combination, we believe that these factors, as well as the available
body of evidence from other similar activities, demonstrate that the
potential effects of the specified activity will have only short-term
effects on individuals. The specified activity is not expected to
impact rates of recruitment or survival and will therefore not result
in population-level impacts. 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
planned monitoring and mitigation measures, we find that the total
marine mammal take from Navy's pier replacement activities will have a
negligible impact on the affected marine mammal species or stocks.

Small Numbers Analysis

The number of incidents of take proposed for authorization for
these stocks, with the exception of the coastal bottlenose dolphin (see
below), would be considered small relative to the relevant stocks or
populations (see Table 5) even if each estimated taking occurred to a
new individual. This is an extremely unlikely scenario as, for
pinnipeds occurring at the NBPL waterfront, there will almost certainly
be some overlap in individuals present day-to-day and in general, there
is likely to be some overlap in individuals present day-to-day for
animals in estuarine/inland waters.
The numbers of authorized take for bottlenose dolphins are higher
relative to the total stock abundance estimate and would not represent
small numbers if a significant portion of the take was for new
individuals. However, these numbers represent the estimated incidents
of take, not the number of individuals taken. That is, it is likely
that a relatively small subset of California coastal bottlenose
dolphins would be incidentally harassed by project activities.
California coastal bottlenose dolphins range from San

[[Page 65386]]

Francisco Bay to San Diego (and south into Mexico), and the specified
activity would be stationary within an enclosed water body that is not
recognized as an area of any special significance for coastal
bottlenose dolphins (and is therefore not an area of dolphin
aggregation, as evident in Navy observational records). We therefore
believe that the estimated numbers of takes, were they to occur, likely
represent repeated exposures of a much smaller number of bottlenose
dolphins and that, based on the limited region of exposure in
comparison with the known distribution of the coastal bottlenose
dolphin, these estimated incidents of take represent small numbers of
bottlenose dolphins.
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, we find that small numbers of marine mammals will be taken
relative to the populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence
Uses

There are no relevant subsistence uses of marine mammals implicated
by this action. Therefore, we have determined that the total taking of
affected species or stocks would not have an unmitigable adverse impact
on the availability of such species or stocks for taking for
subsistence purposes.

Endangered Species Act (ESA)

The Navy initiated informal consultation under section 7 of the ESA
with NMFS Southwest Regional Office (now West Coast Regional Office) on
March 5, 2013. NMFS concluded on May 16, 2013, that the proposed action
may affect, but is not likely to adversely affect, western North
Pacific (WNP) gray whales. The Navy has not requested authorization of
the incidental take of WNP gray whales and no such authorization is
proposed, and there are no other ESA-listed marine mammals found in the
action area. Therefore, no additional consultation under the ESA is
required.

National Environmental Policy Act (NEPA)

In compliance with the NEPA of 1969 (42 U.S.C. 4321 et seq.), as
implemented by the regulations published by the Council on
Environmental Quality (CEQ; 40 CFR parts 1500-1508), the Navy prepared
an Environmental Assessment (EA) to consider the direct, indirect, and
cumulative effects to the human environment resulting from the pier
replacement project. We made the Navy's EA available to the public for
review and comment, in relation to its suitability for adoption in
order to assess the impacts to the human environment of issuance of an
IHA to the Navy. In compliance with NEPA, the CEQ regulations, and NOAA
Administrative Order 216-6, we subsequently adopted that EA and signed
a Finding of No Significant Impact (FONSI) on July 8, 2013.
We have reviewed the Navy's application for a renewed IHA for
ongoing construction activities for 2014-15 and the 2013-14 monitoring
report. Based on that review, we have determined that the proposed
action is very similar to that considered in the previous IHA. In
addition, no significant new circumstances or information relevant to
environmental concerns have been identified. Thus, we have determined
that the preparation of a new or supplemental NEPA document is not
necessary, and, after review of public comments, reaffirm our 2013
FONSI. The 2013 NEPA documents are available for review at
www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Authorization

As a result of these determinations, we have issued an IHA to the
Navy for conducting the described pier maintenance activities in San
Diego Bay, from October 8, 2014 through October 7, 2015, provided the
previously described mitigation, monitoring, and reporting requirements
are incorporated.

Dated: October 29, 2014.
Wanda L. Cain,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2014-26195 Filed 11-3-14; 8:45 am]
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