[Federal Register Volume 75, Number 155 (Thursday, August 12, 2010)]
[Notices]
[Pages 48941-48947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19953]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XY07
Takes of Marine Mammals Incidental to Specified Activities;
Piling and Structure Removal in Woodard Bay Natural Resources
Conservation Area, Washington
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed incidental harassment authorization; request
for comments.
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SUMMARY: NMFS has received an application from the Washington State
Department of Natural Resources (DNR) for an Incidental Harassment
Authorization (IHA) to take marine mammals, by harassment, incidental
to derelict creosote piling and structure removal within the Woodard
Bay Natural Resources Conservation Area (NRCA). Pursuant to the Marine
Mammal Protection Act (MMPA), NMFS is requesting comments on its
proposal to issue an IHA to the DNR to incidentally harass, by Level B
Harassment only, harbor seals during the specified activity.
DATES: Comments and information must be received no later than
September 13, 2010.
ADDRESSES: Comments on the application should be addressed to Michael
Payne, Chief, Permits, Conservation and Education Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-
[[Page 48942]]
West Highway, Silver Spring, MD 20910-3225. The mailbox address for
providing e-mail comments is [email protected]. NMFS is not
responsible for e-mail comments sent to addresses other than the one
provided here. Comments sent via e-mail, including all attachments,
must not exceed a 10-megabyte file size.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information
(for example, name, address, etc.) voluntarily submitted by the
commenter may be publicly accessible. Do not submit Confidential
Business Information or otherwise sensitive or protected information.
A copy of the application containing a list of the references used
in this document may be obtained by writing to the address specified
above, telephoning the contact listed below (see FOR FURTHER
INFORMATION CONTACT), or visiting http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this notice may also be viewed, by
appointment, during regular business hours, at the aforementioned
address. NMFS is also preparing an Environmental Assessment (EA) for
this action (see NEPA section at the end of this notice) and will also
be made available at the above listed Web site when complete.
FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected
Resources, NMFS, (301) 713-2289, ext 151.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
provided to the public for review.
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 United States 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 June 9, 2010, NMFS received an application from the WA DNR
requesting authorization to take, by harassment, small numbers of
marine mammals incidental to derelict creosote piling and structure
removal associated with a habitat restoration project within the
Woodard Bay NRCA, Washington. The specified activity includes removal
of approximately 615 timber pilings and a trestle located in Woodard
Bay and a portion of pier superstructure located at the mouth of
Chapman Bay. Pilings would be removed by vibratory hammer extraction
methods and structures would be removed via cable lifting. In addition,
approximately 25 nest boxes for purple martins would be relocated from
removed pilings to pilings that are retained for seal habitat and
buffer, using a small boat if necessary and would require a battery
powered drill. Activities would occur across 40 days between November
1, 2010, and February 28, 2011.
Harbor seals have been utilizing the remnant log boom structures at
Woodard Bay NRCA as haul-out habitat for resting, pupping and molting
for more than 30 years. These booms are situated among the piles and
structure planned for removal. The WA DNR anticipates harbor seals will
flush into the water upon crew arrival and onset of pile and structure
removal activities; hence, harbor seals may be harassed during pile
removal activities. The DNR is thus requesting an IHA to take harbor
seals, by Level B harassment, incidental to the piling and structure
removal project.
Description of the Specified Activity
The Woodard Bay NRCA, located within Henderson Inlet in southern
Puget Sound, was designated by the Washington State Legislature in 1987
to protect a large, intact complex of nearshore habitats and related
biological communities, and to provide opportunities for low-impact
public use and environmental education for the people of Washington.
The site includes the former Weyerhaeuser South Bay Log Dump, which
operated from the 1920s until the 1980s. The remnant structures from
the log dump, including several hundred creosoted pilings, and a
trestle and pier, continue to negatively impact nearshore ecosystems
protected by the conservation area. Therefore, the WA DNR has proposed
to remove these dilapidated structures to enhance the processes,
functions, and structures of the nearshore ecosystems. However, a few
of the remnant log booms from dumping operations have supported a
healthy population of harbor seals for more than 30 years by providing
haulout habitat. However, seals concentrate themselves and primarily
haul out at only two locations within the NRCA (see Figure 4 in
application).
The proposed project involves the removal of 615 creosote treated
wood pilings and overwater creosoted structures (i.e., a trestle and
pier superstructure) that are not associated with the booms seals use
as a haulout (i.e., not within 30 yards (27 m) of the booms). Pile and
structure removal would be accomplished using vibratory extraction,
direct pull, and/or diver cutting techniques. The vibratory hammer is a
large steel device suspended by a cable from a crane that is stationed
on a barge adjacent to the piling. The pile is then lifted out of the
water and placed on a barge.
Approximately 615 12-24 inch diameter pilings would be removed near
but not directly adjacent to haulouts. An average of 30 pilings removed
per day would be removed via vibratory hammer extraction methods.
Typically the hammer vibrates for less than one minute per pile, so
there would be no more than 30 minutes of hammer vibration over an 8-
hour period. After
[[Page 48943]]
vibration, a choker is used to lift the pile out of the water where it
is placed on the barge for transport to an approved disposal site. If a
pile breaks during extraction, ideally it would do so below the
mudline; however, if a pile is broken above the water line, then a
choker is set on the broken pile and a diver cuts the pile at the mud
line with a chain saw so that it may be brought up to the barge by
crane. Operations would begin on the pilings and structures that are
furthest from the seal haul-out so that there is an opportunity for the
seals to adjust to the presence of the contractors and their equipment.
Actual vibratory extraction operations could occur for approximately 21
days over the 4-month work window (November 1 and February 28). Other
work days would be spent removing pilings associated with the trestle,
which is over 850 m from the haulout, and pier superstructure, which
does not involve vibratory extraction. NMFS anticipates that the
presence of crew and use of a vibratory hammer would result in
behavioral harassment.
The portion of the Chapman Bay Pier that would be removed is more
than 100 yards (91 m) from the closest haul-out area. This activity is
expected to take a maximum of 10 days and, although does not involve
vibratory extraction, has the potential to result in behavioral
harassment due to the close proximity to working crew. In contrast, the
Woodard Bay trestle is located on the other side of a peninsula that
separates Woodard and Chapman Bays and is a distance of more than 850
yards (777 m) from the closest haulout area. Work here is expected to
take a maximum of 10 days to complete. Because of the distance from the
haul-outs, the WA DNR anticipates structure removal at the Woodard Bay
trestle would not disturb the seals. As such, 10 out of the 40 work
days are not expected to result in harbor seal harassment.
Approximately 25 purple martin nest boxes would be relocated from
the removed piles to the pilings that support or surround the haul-out
area. This activity would only require a battery powered drill, is
expected to take 2 days, and could also result in flushing the seals
from the haulout. Crew would be required to complete this activity
during the days when they are already working within 100 yards (91 m)
of the haulout, possibly using a separate boat, so that no additional
work days near the haulout are necessary. Presence of crew relocating
nest boxes may result in behavioral harassment of seals. However,
because this would be completed in tandem with pile removal, no
substantial additional harassment is anticipated.
There is a paucity of data on airborne and underwater noise levels
associated with vibratory hammer extraction. As background, in-air
noise levels are referenced to 20 microPascals (re: 20 microPa) while
underwater noise levels are referenced to one microPascal (re: 1
microPa). Based on information on airborne source levels measured for
vibratory hammer steel and concrete pile driving, removal of wood piles
is unlikely to exceed 90 dBrms re: 20 microPa (pers. comm.,
Miner-Zukerberg, 2010). The DNR and NMFS could not find hydroacoustic
data on vibratory extraction of wood piles; however, it can be assumed
that this activity does not result in SPLs above vibratory hammering.
However, data is also lacking on vibratory hammering wood piles. NMFS
could only find data on driving timber piles using an impact hammer and
vibratory driving non-timber piles. For example, the California
Department of Transportation (Caltrans) indicates impact driving 12- or
14-inch wood piles typically emits peak source levels of 177 dB re: 1
microPa (Caltrans, 2009). Vibratory pile driving 12-24 inch steel piles
typically results in SPLs around 155-165 dB re: 1 microPa (root mean
square) ten meters from the source (Caltrans, 2007). It should be noted
driving steel piles likely results in higher SPLs than driving wood
piles. Similarly, it is generally assumed that vibratory extraction
emits lower SPLs than impact hammering wood piles or vibratory pile
driving steel piles.
Description of Marine Mammals in the Area of the Specified Activity
Harbor seals are the only marine mammal found within the action
area. Harbor seals within the Woodard Bay NRCA belong to the Washington
Inland Waters stock, which was estimated around 14,612 individuals in
2003 (NMFS, 2003). Although the stock assessment report for this stock
has not been updated since 2003, based on trends of other harbor seal
stocks, this is likely an underestimate. Based on the analyses of
Jeffries et al. (2003) and Brown et al. (2005), both the Washington and
Oregon coastal harbor seal stock have reached carrying capacity and are
no longer increasing. Harbor seals are not listed as depleted under the
MMPA or as endangered or threatened under the ESA. They are considered
the most abundant resident pinniped species in Puget Sound (Lance and
Jeffries, 2009).
Harbor seals haul out on rocks, reefs, beaches, and drifting
glacial ice and feed in marine, estuarine, and occasionally fresh
waters. Harbor seals generally are non-migratory, with local movements
associated with such factors as tides, weather, season, food
availability, and reproduction. They display strong fidelity for
haulout sites (Pitcher and Calkins, 1979; Pitcher and McAllister,
1981). The remnant log booms at the Woodard Bay NRCA support a year-
round population of harbor seals, which use the boom structures for
haulout habitat to rest, pup, and molt in two primary locations; to the
east and to the north of the Chapman Bay Pier (see Figure 4 in
application). Haulout behavior is shown to be affected by time of day
and tide cycle, as well as seasonal and weather patterns such as air
temperature, wind speed, cloud cover, and sea conditions (Buettner et
al., 2008). Annually, use of the log booms peaks from July, when
females haul out to give birth to their pups, through October, during
the late pupping season and molt (WA DNR, 2002).
The harbor seal population within the NRCA is considered one of the
healthier ones in southern Puget Sound. Seal numbers have been
monitored at the site since 1977, when there were less than 50 seals.
In 1996, the highest count year, there were 600 seals. The average
maximum annual count between 1977 and 2008 was 315 seals with 410
counted in August of 2008 (Buettner et al., 2008).
Pinnipeds produce a wide range of social signals, most occurring at
relatively low frequencies (Southall et al., 2007), suggesting that
hearing is keenest at these frequencies. Pinnipeds communicate
acoustically both on land and in the water, but have different hearing
capabilities dependent upon the medium (air or water). Based on
numerous studies, as summarized in Southall et al. (2007), pinnipeds
are more sensitive to a broader range of sound frequencies underwater
than in air. Underwater, pinnipeds can hear frequencies from 75 Hz to
75 kHz. In air, the lower limit remains at 75 Hz but the highest
audible frequencies are only around 30 kHz (Southall et al., 2007).
Potential Effects on Marine Mammals
The WA DNR and other organizations, such as the Cascadia Research
Collective, have been monitoring the behavior of harbor seals present
within the action area since 1977. Past disturbance observations at
Woodard Bay NRCA have shown that seal harassment occurs from non-
motorized boats (e.g., recreational kayaks and canoes), motorized
vessels (e.g., fishing boats), and people walking by the haulout
(Calambokidis and Leathery, 1991; Buettner et al., 2008). Calambokidis
and Leathery (1991)
[[Page 48944]]
found that the mean distance that seals entered the water in response
to any type of vessel was 56 m. Most commonly seals were disturbed when
vessels were 26 to 50 m from the haulout; however, only above 125 m was
there a sharp decrease in the proportion of groups disturbed. Seals
entered the water in response to people on foot at up to 256 m
although, on many occasions, people were able to pass less than 100 m
from seals, while maintaining a low profile without causing disturbance
(Calambokidis and Leathery, 1991). Furthermore, the distances that
seals were disturbed varied significantly by vessel type; seals entered
the water at a greater distance in response to kayaks and canoes
compared to recreational motorboats and skiffs. It is hypothesized that
because motor boats are more readily detectable than non-motorized
boats, seals are more aware of their presence at greater distances and
do not react (Buettner et al., 2008). Buettner et al. (2008) reported
the research boat used during their study caused the greatest amount of
harbor seal disturbance reactions with the second and third highest
causes being canoes and kayaks, respectively. The scientists theorized
the most plausible reason for this is that the boats used for research
came within the closest distance to the seals, often within 1 m of the
floats where seals were hauled out.
Buettner et al. (2008) also noted the difference in vigilance of
seals based on float location during pupping season. For example, seals
on floats located on the outer edges of the log boom area, and thus
subjected to greater amounts of vessel traffic, were indifferent to
vessels unless they came right up to the log booms. Contrarily, seals
on the floats located in the central area of the log booms, and hence
not exposed to as much traffic, were more vigilant and more sensitive
to disturbances. Not surprisingly, the inner floats contained the
highest amount of pups. The DNR would conduct the habitat restoration
project from November to February, well outside of the pupping (and
molting) season; therefore no impacts to seals during these
biologically important time periods.
The two studies discussed above indicate that seals are susceptible
to anthropogenic disturbance but also may habituate to such
disturbances. During emergency maintenance operations on the haulout in
2008, the seals present on the log booms flushed when the maintenance
boat first entered the haulout area but quickly became accustomed to
the contractor and the boat and would rest on the haulout during
maintenance operations (pers. comm., Osborne-Zukerberg, 2008).
Maintenance operations included bringing in log booms to restore
habitat and included drilling through booms on a small barge. Seals
initially flushed in response to onset of work but quickly acclimated
to crew presence and would haulout on adjacent booms directly adjacent
to the small barge used during maintenance (pers. comm., Zukerberg-
Daly, June, 2010). Furthermore, Suryan and Harvey (1991) found that
harbor seals hauled-out at Puffin Island, WA, were more tolerant to
subsequent harassments than they were to the initial harassment.
However, sudden presence of a disturbance source (e.g., kayaker) can
induce strong behavioral reactions.
To avoid inducing strong reactions, the WA DNR would conduct
activities such that the piles farthest from the hauled out seals would
be removed first; thereby avoiding a sudden disturbance and allowing
seals time to acclimate to human activity. This would maximize the
initial distance between maintenance crews and seals. The DNR believes
that throughout the day, seals will become accustomed to crew presence
of construction activities, as seen in previous disturbance studies
within the Woodard Bay NRCA and other harbor seal populations.
In addition to crew and vessel presence, hammer operations may
disturb seals in-water; however, it is anticipated that most seals
would be disturbed initially by physical presence. As discussed above,
the DNR and NMFS could not find information on sound levels produced by
timber pile extraction using a vibratory hammer; however, it is
reasonable to assume that extraction would not result in higher SPLs
than vibratory hammering. That is, NMFS anticipates that source levels
in water would not reach 155-165 dB (the average source SPL for driving
12-24 inch steel piles). NMFS' general in-water harassment thresholds
for pinnipeds exposed to non-pulse noise, such as those produced by
vibratory pile extraction, are 190 dB rms re: 1 microPa as the
potential onset of Level A (injurious) harassment and 120 dB rms re: 1
microPa at the potential onset of Level B (behavioral) harassment.
These levels are considered precautionary and NMFS is currently
revising these thresholds to better reflect the most recent scientific
data. Vibratory extraction would not result in sound levels near 190 dB
re: 1 microPa; therefore, injury would not occur. However, noise from
vibratory extraction would exceed 120 dB re: 1 microPa near the source
and may induce responses in-water such as avoidance or alteration of
behavioral states at time of exposure.
There are limited data available on the effects of non-pulse noise
on pinnipeds in-water; however, field and captive studies to date
collectively suggest that pinnipeds do not strongly react to exposures
between 90-140 dB re: 1 microPa; no data exist from exposures at higher
levels (Southall et al., 2007). Jacobs and Terhune (2002) observed wild
harbor seal reactions to high frequency acoustic harassment devices
(ADH) around nine sites. Seals came within 44 m of the active ADH and
failed to demonstrate any behavioral response when received SPLs were
estimated at 120-130 dB re: 1 microPa. In a captive study (Kastelein,
2006), a group of seals were collectively subjected to data collection
and communication network (ACME) non-pulse sounds at 8-16 kHz.
Exposures between 80-107 dB re: 1 microPa did not induce strong
behavioral responses; however, a single observation at 100-110 dB re: 1
microPa indicated an avoidance response at this level. The group
returned to baseline conditions shortly following exposure. Southall et
al. (2007) notes contextual differences between these two studies
noting that the captive animals were not reinforced with food for
remaining in the noise fields, whereas free-ranging subjects may have
been more tolerant of exposures because of motivation to return to a
safe location or approach enclosures holding prey items.
Hearing Impairment
Temporary or permanent hearing impairment is a possibility when
marine mammals are exposed to very loud sounds. Hearing impairment is
measured in two forms: temporary threshold shift (TTS) and permanent
threshold shift (PTS). PTS is considered injurious whereas TTS is not
as it is temporary and hearing is fully recoverable. There are no
empirical data for onset of PTS in any marine mammal; therefore, PTS-
onset must be estimated from TTS-onset measurements and from the rate
of TTS growth with increasing exposure levels above the level eliciting
TTS-onset. PTS is presumed to be likely if the hearing threshold is
reduced by >= 40 dB (i.e., 40 dB of TTS). Due to the low source levels
produced by vibratory extraction, NMFS does not expect that marine
mammals will be exposed to levels that could elicit PTS; therefore, it
will not be discussed further.
Temporary Threshold Shift (TTS)
TTS is the mildest form of hearing impairment that can occur during
[[Page 48945]]
exposure to a loud sound (Kryter, 1985). While experiencing TTS, the
hearing threshold rises and a sound must be louder in order to be
heard. TTS can last from minutes or hours to, in cases of strong TTS,
days. For sound exposures at or somewhat above the TTS-onset threshold,
hearing sensitivity recovers rapidly after exposure to the noise ends.
Few data on sound levels and durations necessary to elicit mild TTS
have been obtained for marine mammals. Southall et al. (2007) considers
a 6 dB TTS (i.e., baseline thresholds are elevated by 6 dB) sufficient
to be recognized as an unequivocal deviation and thus a sufficient
definition of TTS-onset. Because it is non-injurious, NMFS considers
TTS as Level B harassment that is mediated by physiological effects on
the auditory system; however, NMFS does not consider onset TTS to be
the lowest level at which Level B harassment may occur.
Harbor seals within the action area are considered resident and may
therefore be continually exposed to habitat restoration activities
(however, recall that the vibratory hammer need only operate for
approximately 1 minute to extract each pile). Sound exposures that
elicit TTS in pinnipeds underwater have been measured in harbor seals,
California sea lions, and northern elephant seals for broadband or
octaveband (OBN) non-pulse noise ranging from approximately 12 minutes
to several hours (Kastak and Schusterman, 1996; Finneran et al., 2003;
Kastak et al., 1999; Kastak et al., 2005). Collectively, Kastak et al.
(2005) analyzed these data to indicate that in the harbor seal, a TTS
of ca. 6 dB occurred with 25 minute exposure to 2.5 kHz OBN with SPL of
152 dB re:1 microPa; the California sea lion showed TTS-onset at 174 dB
re: 1 microPa (as summarized in Southall et al., 2007). Source levels
emitted by vibratory pile extraction are low, intermittent, and would
occur for a total of only 30 minutes per day. Further, seals may leave
the area upon onset on vibratory pile extraction thereby reducing
exposure duration. For these reasons, NMFS does not anticipate TTS
would be induced.
In summary, it is anticipated that seals would be initially
disturbed by crew and vessels associated with the habitat restoration
project; however, given the short duration and low energy of vibratory
extraction, PTS would not occur and TTS is not likely. Those animals
hauled out on the log booms would likely flush into the water; however,
DNR would start with removal of piles farthest from the haulout. This
methodology is designed to minimize disturbance as seals would have
ample time to become alerted to and habituated to crew and vessel
presence. As demonstrated in 2008, seals initially flushed into the
water upon maintenance crew presence; however, quickly became
accustomed to the contractor and the boat and would rest on the haul-
out during maintenance operations. It is anticipated that harbor seals
would react in a similar manner to pile and structure removal
operations. For these reasons, harbor seals are not expected to abandon
the haulout.
Anticipated Effects on Habitat
Marine mammal habitat would be temporarily ensonified by low sound
levels resulting from habitat restoration effort. The piles designated
to be removed have been treated with creosote, a wood preservative that
is also toxic to the environment. Removing these piles will have
beneficial impacts to the NRCA, including marine mammal habitat, by
preventing the leaching of creosote chemicals, including polycyclic
aromatic hydrocarbons, into the marine environment. No log booms would
be removed; therefore, no impacts to the physical availability of
haulout structure would occur.
Proposed Mitigation
In order to issue an incidental take authorization (ITA) under
Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible
methods of taking pursuant to such activity, and other means of
effecting the least practicable adverse impact on such species or stock
and its habitat, paying particular attention to rookeries, mating
grounds, and areas of similar significance, and on the availability of
such species or stock for taking for certain subsistence uses.
The DNR has proposed mitigation measures designed to minimize
disturbance to harbor seals within the action area in consideration of
timing, location, and equipment use. Foremost, pile and structure
removal would only occur between November and February, well outside
harbor seal pupping and molting seasons. Therefore, no impacts to pups
from the specified activity during these sensitive time periods would
occur. The DNR would approach the action area slowly to alert seals to
their presence from a distance and would begin pulling piles at the
farthest location from the log booms used as harbor seal haulout areas.
The contractor would be required to survey the operational area for
seals before initiating activities, including cutting and removing
pilings and structures, and to wait until the seals are at a sufficient
distance from the activity so as to minimize the risk of direct injury
from the piling or structure breaking free or equipment. DNR would also
require the contractor to initiate a vibratory hammer ``soft start'' at
the beginning of each work day. The ``soft-start'' method includes a
reduced energy vibration from the hammer for the first 15 seconds and
then a one minute waiting period. This method would be repeated twice
before commencing with regular energy operations. Finally, the
vibratory hammer power pack would be outfitted with a muffler to reduce
in-air noise levels.
NMFS has carefully evaluated the applicant's proposed mitigation
measures in the context of ensuring that NMFS prescribes the means of
effecting the least practicable adverse impact on the affected marine
mammal species and stocks and their habitat. 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, including consideration of personnel safety, and
practicality of implementation.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS or recommended by the public,
NMFS has preliminarily determined that the proposed mitigation measures
provide the means of effecting the least practicable adverse impacts on
marine mammals species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.
Proposed Monitoring and Reporting
In order to issue an ITA for an activity, Section 101(a)(5)(D) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking''. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for IHAs
must include the suggested means of accomplishing the necessary
monitoring and reporting that will result in increased knowledge of the
species and of the level of taking or impacts on populations of marine
mammals that are expected to be present.
Seal monitoring and research has been occurring at Woodard Bay
since the 1970s and has included seal
[[Page 48946]]
ecology, population dynamics and disturbance behavior (Newby, 1970;
Calambokidis et al., 1991; Buettner et al., 2008; Lambourn et al.,
2009). DNR's proposed monitoring plan adheres to protocols already
established for Woodard Bay to the maximum extent practical for the
specified activity. Monitoring of both haul-outs would be performed by
at least one NMFS approved protected species observer (PSO) the first 2
days of project activities when the contractors are mobilizing and
starting the vibratory hammer, during the 2 days when activities are
occurring within 100 yards (91 m) of the haulout area, during five of
the days of work on the Chapman Bay Pier, and for six other days during
the 40-day work period to be decided when the project schedule is
provided by the contractor. Therefore, there would be at least 15 days
where a designated observer would be on site over the course of 40 days
of work. The PSO would be onset prior to crew and vessel arrival to
determine the number of seals present pre-disturbance. The PSO would
maintain a low profile during this time to minimize disturbance from
monitoring.
Observational data collected would include monitoring dates, times
and conditions, estimated number of take, which would be recorded as
number of seals flushed from the haulout, and type of activity
occurring at time of disturbance. This information would be determined
by recording the number of seals using the haulout on each monitoring
day prior to the start of restoration activities for that day and
recording the number of seals that flush from the haulout or, for
animals already in the water, display adverse behavioral reactions to
vibratory extraction. A description of the disturbance source, the
proximity in meters of the disturbance source, and reactions would also
be noted. Within 30 days of the completion of the project, DNR would
submit a monitoring report to NMFS that would include a summary of
findings and copies of field data sheets and relevant daily logs from
the contractor.
Estimated Take by Incidental Harassment
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as:
any act of pursuit, torment, or annoyance which (i) has the
potential to injure a marine mammal or marine mammal stock in the
wild [Level A harassment]; or (ii) has the potential to disturb a
marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering
[Level B harassment].
During previous surveys, seal counts for the month of October, the
last month that data is recorded each year, averaged 171 and ranged
between 209 and 275 from 2006 to 2009 (Lambourn, 2010). Although the
number of seals is expected to decline from October through February
when restoration actions are scheduled to occur, there is no data for
these months so the DNR considered a maximum of 275 seals could
potentially be affected by the project per day. The DNR has proposed
that Woodard Bay trestle removal operations are not expected to harass
marine mammals as the trestle is located approximately 850 yards (777
m) from the closest haulout and vibratory extraction does not emit loud
noise into the marine environment. Therefore, days spent removing the
trestle have been removed from take calculations. In addition, the DNR
has proposed that removal of pilings located at greater than 100 yards
(91 m) from the harbor seal haulout would not result in harassment as
NMFS has indicated that people at Woodard Bay should remain 100 yards
from the seals to prevent disturbance. Therefore, the DNR is estimating
only nine days of pile removal would result in harassment to seals
within the action area. Seals may be behaviorally disturbed due to crew
presence of pile removal operations. Given the maximum of 275 animals
on a haulout at any given day, the DNR is requesting authorization to
take, by Level B harassment, 2,475 seals (275 x 9) during the habitat
restoration project with the inference that the individual number of
seals harassed will be low but may be taken multiple times. Although
NMFS does not discount that harassment from pile structure removal
could occur at distances greater than 100 yards from work location, the
conservative estimate of 275 seals present on the haulout per day is
ample buffer to consider the amount of requested take reasonable.
Negligible Impact and Small Numbers Analysis and Determination
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``* * *
an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.'' In making a negligible impact determination,
NMFS considers a number of factors associated with the proposed action
and affected species and stocks including, but not limited to, the
number of anticipated mortalities; number and nature of anticipated
injuries; number, nature, intensity, and duration of Level B
harassment; and temporal and spatial scale of the proposed action with
respect to the ecology and life history of potentially affected marine
mammals (e.g., would harassment occur on prime foraging grounds, during
critical reproductive times, etc.).
For reasons described above, there is no potential for injury or
mortality to occur from the specified activity; therefore, none is
anticipated. However, there is potential for seals to behaviorally
react (e.g., as flush, avoid the area) in response to the presence of
crew and equipment and vibratory extraction noise. The DNR would not
conduct habitat restoration operations during the pupping and molting
season; therefore, no pups would be affected by the proposed action and
no impacts to any seals would occur as a result of the specified
activity during these sensitive time periods. Harbor seals are not
listed as endangered under the ESA or depleted under the MMPA (NMFS,
2003).
Mitigation measures (e.g. beginning work at the farthest distance
to the haulout as possible, use of a muffler pack, etc.) would minimize
onset of sudden, acute reactions and overall disturbance. In addition,
it is not likely that seals at both haulouts would be disturbed
simultaneously as work, for example, may affect the southern haulout
but not the northern haulout based on location of the crew and barge.
The DNR estimates work at any given location may take approximately 10
days; therefore, seals on those haulouts may be taken for 10
consecutive days or they may move to the other haulout farther from
where work is taken place. Further, although seals may initially flush
into the water, based on previous disturbance studies and maintenance
activity at the haulouts, the DNR expects seals will quickly habituate
to piling and structure removal operations. For these reasons no long
term or permanent abandonment of the haulout is anticipated.
The seals at Woodard Bay are considered resident and make small
daily movements to forage; however, exactly how far they transit is
unknown. The mean count of the localized seal population from 1977-2008
was 315 animals during the pupping season with a maximum of 400
individuals counted in 2008 during this time. However, as described
above, these numbers drop over the late fall and winter. The DNR has
scheduled the project to occur from November-February, a time outside
of
[[Page 48947]]
sensitive reproductive periods and during a time seal numbers are
lowest. The DNR is requesting to take approximately 275 seals multiple
times; therefore, the proposed authorized amount of take can be
considered small when compared to the stock size of harbor seals within
Woodard Bay (14,612).
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the mitigation and monitoring
measures, NMFS preliminarily finds that piling and structure removal
associated with the WA DNR's habitat restoration project will result in
the incidental take of small numbers of marine mammals by Level B
harassment only, and that the total taking from the specified activity
would have a negligible impact on 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.
Endangered Species Act (ESA)
No marine mammals listed under the ESA occur within the action
area. Therefore, Section 7 consultation under the ESA is not required.
National Environmental Policy Act (NEPA)
NMFS is currently preparing an Environmental Assessment analyzing
environmental impacts associated with the issuance of an IHA to WA DNR
authorizing the incidental take of marine mammals from pile and
structure removal within the Woodard Bay NRCA. Because the EA is
specific to NMFS' action of issuing an IHA, any comments received in
response to this notice would also influence development of the EA. The
EA would be finalized prior to issuing an IHA to the DNR.
Dated: August 6, 2010.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2010-19953 Filed 8-11-10; 8:45 am]
BILLING CODE 3510-22-P