[Federal Register Volume 82, Number 124 (Thursday, June 29, 2017)]
[Notices]
[Pages 29511-29520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13581]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XF319
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Coast Boulevard Improvements
Project, La Jolla, California
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 NMFS has issued an incidental harassment authorization (IHA) to
the City of San Diego to incidentally harass, by Level B harassment
only, marine mammals during construction and demolition activities
associated with a public parking lot and sidewalk improvements project
in La Jolla, California.
DATES: This Authorization is effective from June 1, 2017, through
December 14, 2017.
FOR FURTHER INFORMATION CONTACT: Jordan Carduner, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to
[[Page 29512]]
harassment, a notice of a proposed authorization is provided to the
public for review.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as an
impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
The MMPA states that the term ``take'' means to harass, hunt,
capture, kill or attempt to harass, hunt, capture, or kill any marine
mammal.
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).
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action with respect to environmental
consequences on the human environment.
Accordingly, NMFS has determined that the issuance of the IHA
qualifies to be categorically excluded from further NEPA review. This
action is consistent with categories of activities identified in CE B4
of the Companion Manual for NOAA Administrative Order 216-6A, which do
not individually or cumulatively have the potential for significant
impacts on the quality of the human environment and for which we have
not identified any extraordinary circumstances that would preclude this
categorical exclusion.
Summary of Request
NMFS received a request from the City of San Diego (City) for an
IHA to take marine mammals incidental to Coast Boulevard improvements
in La Jolla, California. The City's request was for harassment only and
NMFS concurs that mortality is not expected to result from this
activity. Therefore, an IHA is appropriate.
The City's application for incidental take authorization was
received on December 16, 2016. On March 1, 2017, we deemed the City's
application for authorization to be adequate and complete. The planned
activity is not expected to exceed one year, hence we do not expect
subsequent MMPA incidental harassment authorizations would be issued
for this particular activity.
The planned activities include improvements to an existing public
parking lot, sidewalk, and landscaping areas located on the bluff tops
above Children's Pool, a public beach located in La Jolla, California.
Species that are expected to be taken by the planned activity include
harbor seal, California sea lion, and northern elephant seal. Take by
Level B harassment only is expected; no injury or mortality of marine
mammals is expected to result from the planned activity. This
represents the first IHA issued for this activity. The City applied
for, and was granted, IHAs in 2013 2014 and 2015 (NMFS 2013; 2014;
2015) for a lifeguard station demolition and construction project at
Children's Pool beach. NMFS published notices in the Federal Register
announcing the issuance of these IHAs on July 8, 2013 (78 FR 40705),
June 6, 2014 (79 FR 32699), and July 13, 2015 (80 FR 39999),
respectively. The City also applied for, and was granted, an IHA in
2016 (NMFS 2016) for a sand sampling project at Children's Pool beach.
NMFS published a notice in the Federal Register announcing the issuance
of the IHA on June 3, 2016 (81 FR 35739).
Description of Specified Activity
A detailed description of the planned demolition and construction
project is provided in the Federal Register notice for the proposed IHA
(82 FR 19221, April 26, 2017). Since that time, no changes have been
made to the planned activities. Therefore, a detailed description is
not provided here. Please refer to that Federal Register notice for the
description of the specific activity.
Comments and Responses
A notice of NMFS's proposal to issue an IHA to the City was
published in the Federal Register on April 26, 2017 (82 FR 19221). That
notice described, in detail, the City's activity, the marine mammal
species that may be affected by the activity, and the anticipated
effects on marine mammals. During the 30-day public comment period,
NMFS received one comment letter from the Marine Mammal Commission. The
Marine Mammal Commission recommended that NMFS issue the IHA, subject
to inclusion of the proposed mitigation, monitoring, and reporting
measures.
Description of Marine Mammals in the Area of Specified Activities
Three species are considered to co-occur with the City's planned
activities: Harbor seals (Phoca vitulina), which are, by far, the
dominant observed marine mammal in the project area, as well as
California sea lions (Zalophus californianus) and northern elephant
seals (Mirounga angustirostris) which also occasionally haul out in the
project area, in far lower numbers. A detailed description of the
species likely to be affected by the City's planned project, including
brief introductions to the species and relevant stocks as well as
available information regarding population trends and threats, and
information regarding local occurrence, were provided in the Federal
Register notice for the proposed IHA (82 FR 19221, April 26, 2017);
since that time, we are not aware of any changes in the status of these
species and stocks; therefore, detailed descriptions are not provided
here. Please refer to that Federal Register notice for these
descriptions. Please also refer to Sections 3 and 4 of the City's IHA
application, as well as to NMFS's Stock Assessment Reports (SAR;
www.nmfs.noaa.gov/pr/sars/). Additional general information about these
species (e.g., physical and behavioral descriptions) may be found on
NMFS's Web site (www.nmfs.noaa.gov/pr/species/mammals/).
Table 1 lists all species with expected potential for occurrence in
the project location and summarizes information related to the
population or stock, including potential biological removal (PBR),
where known. For taxonomy, we follow Committee on Taxonomy (2016). For
status of species, we provide information regarding U.S. regulatory
status under the MMPA and ESA. Abundance estimates presented here
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study area. NMFS's stock
abundance estimates for most species represent the total estimate of
individuals within the geographic area, if known, that comprises that
stock. For some species, this geographic area may extend beyond U.S.
waters. PBR, defined by the MMPA as the maximum
[[Page 29513]]
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, is considered in
concert with known sources of ongoing anthropogenic mortality to assess
the population-level effects of the anticipated mortality from a
specific project (as described in NMFS's SARs). While no mortality is
anticipated or authorized here, PBR and annual serious injury and
mortality are included here as gross indicators of the status of the
species and other threats.
All values presented in Table 1 are the most recent available at
the time of publication and are available in NMFS's SARs (e.g.,
Carretta et al., 2016). Please see the SARs, available at
www.nmfs.noaa.gov/pr/sars, for more detailed accounts of these stocks'
status and abundance.
Table 1--Marine Mammal Species Potentially Present in the Project Area
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Stock abundance (CV, Relative occurrence in
Species Stock ESA/ MMPA status; Nmin, most recent PBR \3\ Annual M/ project area; season
strategic (Y/N) \1\ abundance survey) \2\ SI \4\ of occurrence
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Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and sea lions)
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California sea lion................ U.S................... -; N................. 296,750 (n/a; 153,337; 9,200 389 Abundant; year-round.
2011).
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Family Phocidae (earless seals)
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Harbor seal........................ California............ -; N................. 30,968 (n/a; 27,348; 1,641 43 Rare; year-round.
2012).
Northern elephant seal............. California breeding... -; N................. 179,000 (n/a; 81,368; 4,882 8.8 Rare; year-round.
2010).
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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 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\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
stock abundance. In some cases, CV is not applicable.
\3\ PBR, 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's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of noise from construction and demolition activities
for the planned project have the potential to result in behavioral
harassment of marine mammals in the vicinity of the action area. The
Federal Register notice for the proposed IHA (82 FR 19221, April 26,
2017) included a discussion of the effects of anthropogenic noise on
marine mammals and their habitat, therefore that information is not
repeated here; please refer to that Federal Register notice for further
information. The main impact associated with the City's planned project
would be temporarily elevated sound levels and the associated direct
effects on marine mammals. No instances of hearing threshold shifts,
injury, serious injury, or mortality are expected as a result of the
planned activities. The project is not expected to not result in
permanent impacts to habitats used directly by marine mammals, such as
haulouts and rookeries, nor is expected to result in impacts to food
sources or impacts to substrate.
Estimated Take by Incidental Harassment
This section provides an estimate of the number of incidental takes
authorized through this IHA, which informs both NMFS' consideration of
whether the number of takes is ``small'' and the negligible impact
determination.
Harassment is the only type of take expected to result from the
planned activities. 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 authorized takes are expected to be by Level B harassment only,
in the form of disruption of behavioral patterns for individual marine
mammals resulting from exposure to sounds associated with the planned
construction and demolition activities. Based on the nature of the
activity, Level A harassment is neither anticipated nor authorized. The
death of a marine mammal is also a type of incidental take. However, in
the case of the planned project it is unlikely that injurious or lethal
takes would occur even in the absence of the planned mitigation and
monitoring measures, and no mortality is anticipated or authorized for
this activity. The current NMFS thresholds for behavioral harassment of
pinnipeds from airborne noise are shown in Table 2.
[[Page 29514]]
Table 2--Current NMFS Criteria for Pinniped Harassment Resulting From
Exposure to Airborne Sound
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Level B harassment Level A harassment
Species threshold threshold
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Harbor seals.................... 90 dB re 20 [mu]Pa Not defined.
Other pinniped species.......... 100 dB re 20 Not defined.
[mu]Pa.
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NMFS currently uses a three-tiered scale to determine whether the
response of a pinniped on land to acoustic or visual stimuli is
considered an alert, a movement, or a flush. NMFS considers the
behaviors that meet the definitions of both movements and flushes to
qualify as behavioral harassment. Thus a pinniped on land is considered
by NMFS to have been behaviorally harassed if it moves greater than two
times its body length, or if the animal is already moving and changes
direction and/or speed, or if the animal flushes from land into the
water. Animals that become alert without such movements are not
considered harassed. See Table 3 for a summary of the pinniped
disturbance scale.
Table 3--Levels of Pinniped Behavioral Disturbance on Land
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Level Type of response Definition
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1................ Alert............. Seal head orientation or brief
movement in response to
disturbance, which may include
turning head towards the
disturbance, craning head and
neck while holding the body
rigid in a u-shaped position,
changing from a lying to a
sitting position, or brief
movement of less than twice the
animal's body length.
2................ Movement.......... Movements in response to the
source of disturbance, ranging
from short withdrawals at least
twice the animal's body length
to longer retreats over the
beach, or if already moving a
change of direction of greater
than 90 degrees.
3................ Flush............. All retreats (flushes) to the
water.
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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. In practice, depending on the amount of information available to
characterize daily and seasonal movement and distribution of affected
marine mammals, it can be difficult to distinguish between the number
of individuals harassed and the instances of harassment and, when
duration of the activity is considered, it can result in a take
estimate that overestimates the number of individuals harassed. In
particular, for stationary activities such as the planned project, it
is more likely that some smaller number of individuals may accrue a
number of incidences of harassment per individual than for each
incidence 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 is stronger than the deterrence presented by
the harassing activity.
The take calculations presented here rely on the best information
currently available for marine mammal populations in the Children's
Pool area. Below we describe how the take was estimated for the planned
project.
Pacific Harbor Seal
The take estimate for harbor seal was based on the following steps:
(1) Estimate the total area in square meters (m\2\) of harbor seal
haulout habitat available at Children's Pool;
(2) Estimate the total area of available haulout habitat expected
to be ensonified to the airborne Level B harassment threshold for
harbor seals (90 decibels (dB) re 20 micropascals ([mu]Pa)) based on
total haulout area and the percentage of total haulout area expected to
be ensonified to the Level B harassment threshold;
(3) Estimate the daily number of seals exposed to sounds above
Level B harassment threshold by multiplying the total area of haulout
habitat expected to be ensonified to the Level B threshold by the
expected daily number of seals on Children's Pool;
(4) Estimate the total number of anticipated harbor seals taken
over the duration of the project by multiplying the daily number of
seals exposed to noise above the Level B harassment threshold by the
number of total project days in which project-related sounds may exceed
the Level B harassment threshold.
As described above, Children's Pool is designated as a shared-use
beach. The beach and surrounding waters are used for swimming, surfing,
kayaking, diving, tide pooling, and nature watching, thus the beach is
shared between humans and pinnipeds. To discourage people from
harassing pinnipeds hauled out on the beach, a guideline rope, oriented
parallel to the water, bisects the beach into upper (western) and lower
(eastern) beach areas; people are encouraged to stay on the western
side of the guideline rope, allowing seals to use the eastern section
of beach that provides access to the water. The City's estimate of
available pinniped habitat was based on the total area of the beach
between the guideline rope and the mean lower low water line. Thus, the
area considered for this analysis to be available as haulout habitat is
the total area east of the rope and west of the mean lower low water
line, while the area west of the rope is assumed to be unavailable as
pinniped habitat (See Figure 5 in the IHA application for the location
of the guideline rope, and the area assumed to be available haulout
habitat). The City estimated that there are 2,509 m\2\ east of the
guideline rope; therefore it is assumed that there is a total of 2,509
m\2\ of available pinniped habitat on Children's Pool (Figure 5 in IHA
application).
The City estimated the area of available harbor seal habitat at
Children's Pool beach that would be ensonified to the Level B
harassment threshold by estimating the distance to the Level B
harassment threshold from sounds associated with the planned
activities, then calculating the percentage of available haulout
habitat at Children's Pool that would be ensonified to that threshold
based on the total available habitat and the distance to the Level B
harassment threshold.
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To estimate the distance to the in-air Level B harassment threshold
for harbor seals (90 dB root mean square (rms)) for the planned
project, the City first used a spherical spreading loss model, assuming
average atmospheric conditions. The spreading loss model predicted that
the 90 dB isopleth would be reached at 10 m (33 feet (ft)). However,
data from in situ recordings conducted during the lifeguard station
project at Children's Pool indicated that peak sound levels of 90 to
103 dB were recorded at distances of 15 m to 20 m (49 to 66 ft) from
the source when the loudest construction equipment (source levels
ranging from 100 to 110 dB) was operating. The City estimated that the
loudest potential sound sources associated with the planned project
would be approximately 110 dB rms (See Table 2 in IHA application),
based on manufacturer specifications and previous recordings of similar
equipment used during the lifeguard station project at Children's Pool
(Hanan & Associates 2014; 2015; 2016). Therefore, the City estimated
that for the sound sources expected to result in the largest isopleths
(those with SLs estimated at up to 110 dB), the area expected to be
ensonified to the in-air Level B harassment threshold for harbor seals
(90 dB rms) would extend to approximately 20 m from the sound source.
To be conservative, the City used this distance (20 m) based on the
data from previous site-specific monitoring, rather than the results of
the spherical spreading loss model, to estimate the predicted distance
to the in-air Level B harassment threshold for harbor seals.
Based on the estimated distance to the in-air Level B harassment
threshold for harbor seals (20 m from the sound source), the City
estimated 647 m\2\ of total available harbor seal habitat at Children's
Pool beach would be ensonified to the Level B harassment threshold, the
City therefore estimated that approximately 25.8 percent (647/2,509) of
available harbor seal haulout habitat at Children's Pool beach would be
ensonified to the Level B harassment threshold (Figure 5 in IHA
application). This information has been used to derive the take
estimate only; the entire beach would be observed in order to document
potential actual take.
The estimated daily take of harbor seals was based on the number of
harbor seals expected to occur daily in the area ensonified to the
Level B harassment threshold. In their IHA application, the City
estimated that 200 harbor seals would be present on Children's Pool
beach per day, based on literature that reported this number as the
maximum number of seals recorded at Children's Pool (Linder 2011).
However, NMFS believes it is more appropriate to use the average number
of seals observed on Children's Pool beach, as opposed to the maximum
number of seals, to estimate the likely number of takes of harbor seals
as a result of the planned project. During 3,376 hourly counts
associated with monitoring for IHAs issued for construction and
demolition at the lifeguard station at Children's Pool in 2013-14,
2014-15, and 2015-16, there was an average of 54.5 harbor seals
(including pups) recorded daily on Children's Pool beach (pers. comm.,
D. Hanan, Hanan & Associates, to J. Carduner, NMFS, April 4, 2017). We
therefore estimated that 55 harbor seals would occur on Children's Pool
per day, and used this number to estimate take of harbor seals as a
result of the planned project. Based on an estimate of 55 total harbor
seals on Children's Pool per day, and an estimated 25.8 percent of
total haulout habitat ensonified to the Level B harassment threshold
for harbor seals, we estimated that an average of 14.2 (rounded to 15)
takes of harbor seals by Level B harassment would occur per day.
The City estimated that the total duration of the project would be
164 days. However, activities involving equipment that could result in
sound source levels of 101-110 dB would occur on a maximum of 108
project days (pers. comm., D. Langsford, Tierra Data, to J. Carduner,
NMFS, April 3, 2017). Based on the distance of the project to
Children's Pool and previous monitoring reports, we believe it is
unlikely that project-related activities with expected source levels at
or below 100 dB rms would result in sound exposure levels at or above
90 dB among any pinnipeds at Children's Pool. Planned project-related
activities will occur on top of a natural cliff in an area of
increasing elevation above the beach, therefore we do not believe
visual stimuli from the project will result in behavioral harassment of
any marine mammals. Therefore, we do not expect that activities with
expected source levels of 100 dB and below will result in take of
marine mammals. Thus, our take estimate is based on the number of days
in which source levels associated with the planned project could be
between 100 and 110 dB rms. Based on an estimate of 15 takes of harbor
seals per day by Level B harassment, over a total of 108 days the
project is expected to result in a total of 1,620 takes of harbor seals
by Level B harassment. We therefore authorize a total of 1,620
incidental takes of harbor seals by Level B harassment only.
California Sea Lion
As described above, California sea lions are occasional visitors to
Children's Pool. The most reliable estimates of likely California sea
lion occurrence in the project area come from monitoring reports
associated with IHAs issued previously for demolition and construction
of the lifeguard station at Children's Pool. In 2015-16 there were 71
observations of California sea lions on Children's Pool over 209 days
of monitoring, for an average of one California sea lion observed on
Children's Pool approximately every three days. Based on this ratio, we
estimate that a total of 55 observations of California sea lions on
Children's Pool during the entire duration of the project (164 days);
however as described above we do not think take is likely to occur on
days in which source levels are below 100 dB. We expect one take of
California sea lion will occur for every 3 days of the project in which
source levels are anticipated to be between 101-110 dB (108 total
days). We therefore authorize 36 incidental takes of California sea
lions by Level B harassment only.
Northern Elephant Seal
As described above, northern elephant seals are occasional visitors
to Children's Pool. The most reliable estimates of likely northern
elephant seal occurrence in the project area come from monitoring
reports associated with IHAs issued previously for demolition and
construction of the lifeguard station at Children's Pool. In 2015-16
there were 26 observations of northern elephant seals on Children's
Pool over 209 days of monitoring, for an average of one northern
elephant seal observed on Children's Pool approximately every eight
days. Based on this ratio, we estimate a total of 20 northern elephant
seals will be observed on Children's Pool during the entire duration of
the project (164 days); however as described above we do not think take
is likely to occur on days in which source levels are below 100 dB. We
expect one northern elephant seal take will occur for every eight days
of the project in which source levels are anticipated to be between
101-110 dB (108 total days). We therefore authorize 14 incidental takes
of northern elephant seals by Level B harassment only.
[[Page 29516]]
Table 4--Summary of Numbers of Marine Mammals Authorized To Be Incidentally Taken by the City During the Planned
Project
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Species Level A takes Level B takes Total
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Harbor seal..................................................... 0 1,620 1,620
California sea lion............................................. 0 36 36
Northern elephant seal.......................................... 0 14 14
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Effects of Specified Activities on Subsistence Uses of Marine Mammals
There are no relevant subsistence uses of marine mammals implicated
by this action. Therefore, NMFS has determined that the total taking of
affected species or stocks will not have an unmitigable adverse impact
on the availability of such species or stocks for taking for
subsistence purposes.
Mitigation Measures
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 (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting such
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable impact on species or stocks and their
habitat, as well as subsistence uses where applicable, we carefully
balance two primary factors: (1) The manner in which, and the degree to
which, the successful implementation of the measure(s) is expected to
reduce impacts to marine mammals, marine mammal species or stocks, and
their habitat--which considers the nature of the potential adverse
impact being mitigated (likelihood, scope, range), as well as the
likelihood that the measure will be effective if implemented; and the
likelihood of effective implementation, and; (2) the practicability of
the measures for applicant implementation, which may consider such
things as cost, impact on operations, and, in the case of a military
readiness activity, personnel safety, practicality of implementation,
and impact on the effectiveness of the military readiness activity.
Any mitigation measure(s) prescribed by NMFS should be able to
accomplish, have a reasonable likelihood of accomplishing (based on
current science), or contribute to the accomplishment of one or more of
the general goals listed below:
1. Avoidance or minimization of injury or death of marine mammals
wherever possible (goals 2, 3, and 4 may contribute to this goal);
2. A reduction in the numbers of marine mammals (total number or
number at biologically important time or location) exposed to
activities expected to result in the take of marine mammals (this goal
may contribute to 1, above, or to reducing harassment takes only);
3. A reduction in the number of times (total number or number at
biologically important time or location) individuals would be exposed
to activities expected to result in the take of marine mammals (this
goal may contribute to 1, above, or to reducing harassment takes only);
4. A reduction in the intensity of exposures (either total number
or number at biologically important time or location) to activities
expected to result in the take of marine mammals (this goal may
contribute to 1, above, or to reducing the severity of harassment takes
only);
5. Avoidance or minimization of adverse effects to marine mammal
habitat, paying special attention to the food base, activities that
block or limit passage to or from biologically important areas,
permanent destruction of habitat, or temporary destruction/disturbance
of habitat during a biologically important time; and
6. For monitoring directly related to mitigation--an increase in
the probability of detecting marine mammals, thus allowing for more
effective implementation of the mitigation.
Mitigation for Marine Mammals and Their Habitat
The City proposed several mitigation measures. These measures
include the following:
Moratorium during harbor seal pupping season: Demolition
and construction will be prohibited during the Pacific harbor seal
pupping season (December 15th to May 15th) and for an additional two
weeks to accommodate lactation and weaning of late season pups. Thus
construction will be prohibited from December 15th to May 29th. This
measure is designed to avoid any potential adverse impacts to pups that
may otherwise occur, such as abandonment by mothers as a result of
harassment;
Activities limited to daylight hours only: Construction
and demolition will be limited to daylight hours only (7 a.m. to 7
p.m., or 30 minutes before sunset depending on time of year). This
measure is designed to facilitate the ability of MMOs to effectively
monitor potential instances of harassment and to accurately document
behavioral responses of pinnipeds to project-related activities;
Timing constraints for very loud equipment: To minimize
potential impacts to marine mammals, construction and demolition
activity involving use of very loud equipment (e.g., jackhammers) will
be scheduled during the daily period of lowest pinniped haul-out
occurrence, between the hours of 8:30 a.m. to 3:30 p.m., to the maximum
extent practical. This measure is designed to minimize the number of
pinnipeds exposed to sounds that may result in harassment. Construction
and demolition may be extended from 7 a.m. to 7 p.m. (daylight hours
only) to help ensure the project is completed in 2017, prior to the
moratorium during the harbor seal pupping season starting December
15th, so as to reduce the overall duration of the project; and
Marine mammal observers (MMO): Trained MMOs will be used
to detect and document project-related impacts to marine mammals,
including any behavioral responses to the project. This measure is
designed to facilitate the City's ability to increase the understanding
of the effects of the action on marine mammal species and stocks. More
information about this measure is contained in the ``Monitoring and
Reporting'' section below.
[[Page 29517]]
Based on our evaluation of the applicant's proposed measures, NMFS
has determined that the mitigation measures described above provide the
means effecting the least practicable impact on the affected 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
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
action area. Effective reporting is critical both to compliance as well
as ensuring that the most value is obtained from the required
monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
Mitigation and monitoring effectiveness.
Monitoring
The City has developed a Monitoring Plan specific to the project
which establishes protocols for both acoustic and marine mammal
monitoring. The objectives of the Monitoring Plan are to observe and
document real-time sound levels in the project area, to document
observed behavioral responses to project activities, and to record
instances of marine mammal harassment. Monitoring will be conducted
before, during, and after project activities to evaluate the impacts of
the project on marine mammals. The Monitoring Plan can be found in
Appendix C of the City's IHA application.
The Monitoring Plan encompasses both acoustic monitoring and marine
mammal monitoring. Marine mammal monitoring will be conducted to assess
the number and species, behavior, and responses of marine mammals to
project-related activities as well as other sources of disturbance, as
applicable. Acoustic monitoring will measure in-air sound pressure
levels during ambient conditions and during project activities to
measure sound levels associated with the project and to determine
distances within which Level B acoustic harassment disturbance are
expected to occur. More details are provided below.
Acoustic Monitoring
Monitors will collect real-time acoustic data of construction
activities to determine sound pressure levels (SPL) values during
demolition and construction activities, and to determine distances to
zones within which SPLs are expected to meet or exceed airborne Level B
harassment thresholds for harbor seals and other pinnipeds.
Environmental data will also be collected to provide information on the
weather, visibility, sea state, and tide conditions during monitoring
surveys.
Sound level meters will be used to document SPLs at near-field and
far-field locations during all surveys, and to determine the distances
to Level B harassment thresholds. Far-field locations will include the
western end of the beach, the middle of the guideline rope and the
eastern edge of the beach. The total number and locations of the
monitoring stations will be determined during each survey based on the
location of construction activities and likelihood for sound levels to
meet or exceed in-air SPL harassment thresholds in areas where marine
mammals are observed at Children's Pool. Refer to Section 3 of the
Monitoring Plan for further details on the acoustic monitoring plan.
Marine Mammal Monitoring
Marine mammal monitoring will be conducted by qualified MMOs to
document behavioral responses of marine mammals to the planned project.
Monitors will document the behavior of marine mammals, the number and
types of responses to disturbance, and the apparent cause of any
reactions. Marine mammals displaying behavioral responses to
disturbance will be assessed for the apparent cause of disturbance. All
responses to stimuli related to the project will be documented;
responses that rise to the level of behavioral harassment (Table 4)
will be documented as takes.
Marine mammal observations may be made from vantage points on the
beach or from overlook areas that provide an unobstructed view of the
beach. Monitoring on the beach will be behind the guideline rope to
minimize potential disturbance to hauled out marine mammals.
The following data will be collected during the marine mammal
monitoring surveys:
Dates and times of marine mammal observations;
Location of observations;
Construction activities occurring during each observation
period. Any substantial change in construction activities (especially
cessation) during observation periods should be noted;
Human activity in the area; number of people on the beach,
adjacent overlooks, and in the water;
Counts by species of pinnipeds, and if possible sex and
age class;
Number and type of responses to disturbance, such as
alert, flush, vocalization, or other with a description; and
Apparent cause of reaction.
In the Federal Register notice of the proposed IHA (82 FR 19221,
April 26, 2017) we proposed that the extent of marine mammal monitoring
would depend on recorded sound levels of the activities performed.
However, since that time, the City has agreed that marine mammal
monitoring will be carried out every day during construction and
demolition. Monitoring will include a Pre-Construction Activity Survey,
hourly Construction Activity Surveys, and a Post-Construction Activity
Survey. Pre-Construction Activity Surveys will include recordings of
the times of observations, environmental conditions, and maximum
ambient SPLs at the recording location at the top of the bluff adjacent
to the project site, and at the
[[Page 29518]]
three far-field locations, and will occur at least 30 minutes prior to
the start of construction activities. Hourly Construction Activity
Surveys will record times of observations, environmental conditions,
and maximum SPLs at near-field and far-field locations. Post-
Construction Activity Surveys will record times of observations,
environmental conditions, and maximum ambient SPLs at all monitoring
locations surveyed during the Construction Activity Surveys. Marine
mammal monitoring data will be collected, as noted above.
Marine mammal monitoring will be conducted by a qualified marine
mammal observer (MMO) with the following minimum qualifications:
Visual acuity in both eyes (correction is permissible)
sufficient for discernment of moving targets at the water's surface,
with the ability to estimate target size and distance; use of
binoculars may be necessary to correctly identify the target;
A minimum of a Bachelor's degree in biological science,
wildlife management, mammalogy, or related field;
Experience and ability to conduct field observations and
collect data according to assigned protocols (this may include academic
experience);
Experience or training in the field identification of
marine mammals, and identification of marine mammal behavior;
Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area, as needed; and
Writing skills sufficient to prepare a report of
observations.
Guadalupe and northern fur seals would be considered extralimital
to the project area, however, as fur seals have been occasionally
observed in the area, the MMO will ensure that take of fur seals is
avoided. In the event that a fur seal or another species of marine
mammal for which take is not authorized in the IHA are observed either
on the rocks, beach, or in the water at Children's Pool prior to
commencement of activities or during project activities, the MMO will
alert the stranding network, as the occurrence of these species would
typically indicate a sick/injured animal, and activities will be
postponed until coordination with the stranding network is complete
(including any potential 24-hour or 48-hour wait/observation period)
and the animal either leaves or is collected by the stranding network.
Marine mammal monitoring protocols are described in greater detail
in Section 4 of the City's Monitoring Plan.
Reporting
A final monitoring report will include data collected during marine
mammal monitoring and acoustic and environmental monitoring as
described above. The monitoring report will include a narrative
description of project related activities, counts of marine mammals by
species, sex and age class, a summary of marine mammal species/count
data, a summary of marine mammal responses to project-related
disturbance, and responses to other types of disturbances. The
monitoring report will also include a discussion of seasonal and daily
variations in the abundance of marine mammals at Children's Pool, the
relative percentage of marine mammals observed to react to construction
activities and their observed reactions, and the number of marine
mammals taken as a result of the project based on the criteria shown in
Table 3.
A draft report will be submitted to NMFS within 60 calendar days of
the completion of acoustic measurements and marine mammal monitoring.
The results will be summarized in tabular/graphical forms and include
descriptions of acoustic sound levels and marine mammal observations
according to type of construction activity and equipment. A final
report will be prepared and submitted to NMFS within 30 days following
receipt of comments on the draft report from NMFS. Reporting measures
are described in greater detail in Section 6 of the City's Monitoring
Plan.
Monitoring reports from IHAs issued to the City in 2013, 2014, and
2015 for the lifeguard station construction project at Children's Pool
reported that pinniped responses to that project ranged from no
response to heads-up alerts, from startle responses to some movements
on land, and some movements into the water (Hanan & Associates 2014;
2015; 2016). There were no documented occurrences of Level A takes
throughout the three years of monitoring (Hanan & Associates 2014;
2015; 2016). Data from the three years of monitoring indicates no site
abandonment by harbor seals a result of the project (Hanan & Associates
2014; 2015; 2016). Monitoring reports from previous IHAs issued to the
City for lifeguard tower construction at Children's Pool can be found
on our Web site at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. The monitoring report from the previous IHA issued to
the City for a sand quality study at Children's Pool can be found on
our Web site at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm.
Negligible Impact Analysis and Determination
NMFS has defined negligible impact 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 (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects).
An estimate of the number of 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 harassment, NMFS considers 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 effects on habitat, and the likely effectiveness of the
mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS's implementing
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, or
ambient noise levels).
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).
Although the City's planned activities may disturb pinnipeds hauled
out at Children's Pool, any project-related impacts are expected to
occur to a small, localized group of marine mammals, in relation to the
overall stocks of marine
[[Page 29519]]
mammals considered here. Pinnipeds will likely become alert or, at
most, flush into the water in response to sounds from the planned
project. Disturbance is not expected to occur during particularly
sensitive times for any marine mammal species, as mitigation measures
have been specifically designed to avoid project-related activity
during harbor seal pupping season to eliminate the possibility for pup
injury or mother-pup separation. No injury, serious injury, or
mortality is anticipated, nor is the planned action likely to result in
long-term impacts such as permanent abandonment of the haulout (Hanan &
Associates 2016).
Children's Pool is not known as an important feeding area for
harbor seals, but does serve as a harbor seal rookery. Therefore, if
displacement of seals or adverse effects to pups were an expected
outcome of the planned activity, impacts to the stock could potentially
result. However, site abandonment is not expected to occur as a result
of the planned project. We base this expectation on results of previous
monitoring reports from the three consecutive IHAs issued to the City
for construction and demolition of the lifeguard station at Children's
Pool. Over three-plus years of consecutive monitoring (2013-2016) there
was no site abandonment by harbor seals a result of the project (Hanan
& Associates 2014; 2015; 2016). Adverse effects to pups are not
expected to occur. The moratorium on project-related activity during
the harbor seal pupping season (December 15-May 15) is expected to
minimize any potential adverse effects to pups such as mother-pup
separation. Takes of harbor seal as a result of the project are
expected to be low relative to stock size (approximately five percent).
Additionally, as there are an estimated 600 harbor seals using
Children's Pool beach during a year (Linder 2011), authorized takes of
harbor seals (Table 4) are expected to be repeated incidences of take
to a smaller number of individuals, and not individuals taken, as
described above. These takes are not expected to interfere with
breeding, sheltering or feeding. For the reasons stated above, we do
not expect the planned project to affect annual rates of recruitment or
survival for harbor seals.
Children's Pool does not represent an important feeding or breeding
area for either northern elephant seals or California sea lion, and
neither species uses the project location as a pupping site. Takes of
both species are expected to be very low relative to the stock sizes
(less than one percent of the stock for each species) and no take by
Level A harassment is anticipated to occur as a result of the project
for either northern elephant seals or California sea lions. Takes that
occur are expected to be in the form of behavioral harassment,
specifically changes in direction or possibly flushing to the water.
These takes are not expected to interfere with breeding, sheltering or
feeding. For the reasons stated above, we do not expect the planned
project to affect annual rates of recruitment or survival for northern
elephant seals or California sea lions.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect the species or stock through
effects on annual rates of recruitment or survival.
No mortality is anticipated or authorized.
No injury is expected. Over the course of 3,376 hourly
counts associated with monitoring for IHAs issued to the City for
construction and demolition of the lifeguard station at Children's Pool
in 2013-14, 2014-15, and 2015-16, no takes by Level A harassment were
documented. As the planned project will entail equipment with similar
expected sound levels to those that occurred during the lifeguard
station project at Children's Pool, but will occur further from the
haulout location than the lifeguard station project, we do not expect
take by Level A harassment to occur as a result of the planned project.
Behavioral disturbance--Takes are expected to be in the
form of behavioral disturbance only. Based on the sound levels
anticipated and based on the monitoring reports from previous IHAs
issued for similar activities at the same location, behavioral
responses are expected to range from no response to alerts, to
movements or changes in direction, to possible movements into the water
(flushes). Mitigation as described above is expected to limit the
number and/or severity of behavioral responses, and those that occur
are not expected to be severe.
Important Areas--As described above, there are no
important feeding, breeding or pupping areas that will be affected by
the planned project for northern elephant seals and California sea
lions. For harbor seal, Children's Pool represents a pupping location.
However, as described above, mitigation measures including the
moratorium during pupping season (December 15 to May 15) are expected
to avoid any potential impacts to pups, such as mother-pup separation.
Data from the three years of monitoring suggests that despite
documented instances of harassment resulting from the lifeguard station
project, there was no site abandonment a result of the project (Hanan &
Associates 2014; 2015; 2016). Therefore, the planned project is not
expected to negatively affect pups of any species, and is not expected
to result in any impacts to annual rates of recruitment or survival.
Species/Stock scale--As described above, the planned
project will impact only a very small percentage of the stocks
(approximately five percent for harbor seal, less than one percent for
northern elephant seal and California sea lion) and will only impact
all marine mammal stocks over a very small portion of their ranges.
Species/stock status--No marine mammal species for which
take is authorized are listed as threatened or endangered under the ESA
and no marine mammal stocks for which take is authorized are determined
to be strategic or depleted under the MMPA.
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 monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the planned
activity will have a negligible impact on all affected marine mammal
species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under Section 101(a)(5)(D) of the MMPA for specified
activities other than military readiness activities. The MMPA does not
define small numbers and so, in practice, NMFS compares the number of
individuals taken to the most appropriate estimation of abundance of
the relevant species or stock in our determination of whether an
authorization is limited to small numbers of marine mammals.
The numbers of marine mammals authorized to be taken for harbor
seal, California sea lion, and northern elephant seal, are considered
small relative to the relevant stocks or populations (approximately
five percent for harbor seal and less than one percent for northern
elephant seal and California sea lion) even if each estimated take
occurred to a new individual. However, we believe it is extremely
unlikely that each estimated take will occur to a new individual, and
more likely that multiple takes will accrue to the same individuals.
As described above, depending on the amount of information
available to
[[Page 29520]]
characterize daily and seasonal movement and distribution of affected
marine mammals, it can be difficult to distinguish between the number
of individuals harassed and the instances of harassment, and this can
result in a take estimate that overestimates the number of individuals
harassed. In particular, for stationary activities, such as the planned
project, it is more likely that some smaller number of individuals may
accrue a number of incidences of harassment per individual than for
each incidence to accrue to a new individual. This is especially true
for those individuals display some degree of residency or site fidelity
and the impetus to use the site is stronger than the deterrence
presented by the harassing activity, as is the case with harbor seals
that use Children's Pool as a haulout.
For the reasons described above, we expect that there will almost
certainly be some overlap in individuals present day-to-day at the
project site, and the total numbers of authorized takes are expected to
occur only within a small portion of the overall regional stocks. Thus
while we authorize the instances of incidental take shown in Table 5,
we believe that the number of individual marine mammals that will be
incidentally taken by the project will be substantially lower than
these numbers.
Table 5--Estimated Numbers of Take and Percentages of Marine Mammal Stocks That May Be Taken
----------------------------------------------------------------------------------------------------------------
Stock Percentage of
Species Level B take abundance stock or
authorized estimate \1\ population
----------------------------------------------------------------------------------------------------------------
Harbor seal..................................................... 1,620 30,968 5
California sea lion............................................. 36 296,750 <1
Northern elephant seal.......................................... 14 179,000 <1
----------------------------------------------------------------------------------------------------------------
\1\ NMFS 2015 marine mammal stock assessment reports (Carretta et al., 2016) available online at:
www.nmfs.noaa.gov/pr/sars/.
Based on the analysis contained herein of the planned activity
(including the mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
will be taken relative to the population size of the affected species
or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks will not
have an unmitigable adverse impact on the availability of such species
or stocks for taking for subsistence purposes.
Endangered Species Act (ESA)
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally with our ESA Interagency Cooperation Division
whenever we propose to authorize take for endangered or threatened
species.
No incidental take of ESA-listed species is authorized or expected
to result from this activity. Therefore, NMFS has determined that
formal consultation under section 7 of the ESA is not required for this
action.
Authorization
NMFS has issued an IHA to the City of San Diego for the take of
small numbers of three marine mammal species incidental to conducting
demolition and construction activities at Coast Boulevard, La Jolla,
California, from June 1, 2017 through December 14, 2017, provided the
previously mentioned mitigation, monitoring, and reporting
requirements.
Dated: June 23, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2017-13581 Filed 6-28-17; 8:45 am]
BILLING CODE 3510-22-P