Takes of Marine Mammals Incidental to Specified Activities; Piling and Fill Removal in Woodard Bay Natural Resources Conservation Area, Washington, 55459-55463 [2012-22211]
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Federal Register / Vol. 77, No. 175 / Monday, September 10, 2012 / Notices
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were addressed in our responses to the
previous petitions and therefore not
repeated here.
In the current petition, the petitioners
have specified their request to delist the
SONCC coho salmon ESU, reiterated
many of their previous arguments, and
presented some additional information
regarding coho and Chinook salmon
fishing seasons in Oregon streams,
Yukon River salmon run predictions,
changes in salmon landings over the
past 1–2 decades, and increases in
Pacific Ocean water temperature. We
carefully analyzed this additional
information and found that it is: Not
relevant to the petitioned action (e.g.,
the Oregon and Yukon fisheries are
different ESUs from the petitioned
species); not supported by literature
citations or other references in the
petition (e.g., historical landings and
ocean temperature information), and
therefore constitutes unsupported
assertions; or it simply does not support
the petitioned action (e.g., information
about coho and Chinook salmon fishing
seasons in Oregon streams that are not
within the range of this ESU). As a
result of these deficiencies, the petition
does not present any additional
substantial scientific or commercial
information that indicates the petitioned
action may be warranted. Moreover,
none of this additional information
modifies the underlying scientific basis
for our original determination to list the
SONCC coho salmon ESU or causes us
to re-evaluate our analysis of delisting
petitions that were previously submitted
by the petitioners.
ESA Statutory and Regulatory
Provisions and Evaluation Framework
Section 4(b)(3)(A) of the ESA (16
U.S.C. 1533(b)(3)(A)) requires that we
make a finding as to whether a petition
to list, delist, or reclassify a species
presents substantial scientific or
commercial information indicating the
petitioned action may be warranted.
ESA implementing regulations define
‘‘substantial information’’ as the
‘‘amount of information that would lead
a reasonable person to believe that the
measure proposed in the petition may
be warranted’’ (50 CFR 424.14(b)(1)). In
determining whether a petition presents
substantial scientific or commercial
information to list or delist a species, we
take into account information submitted
with, and referenced in, the petition and
all other information readily available in
our files. To the maximum extent
practicable, this finding is to be made
within 90 days of the receipt of the
petition, followed by prompt
publication in the Federal Register (16
U.S.C. 1533(b)(3)(A)). ESA
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implementing regulations state that a
species may be delisted only if the best
scientific and commercial data available
substantiate that it is neither
endangered nor threatened for one or
more of the following reasons: The
species is extinct; the species is
recovered; or subsequent investigations
show the best scientific or commercial
data available when the species was
listed, or the interpretation of such data,
were in error (50 CFR 424.11(d)).
Petition Finding
As discussed above, this subject
petition does not present any additional
substantial scientific or commercial
information related to whether the
SONCC ESU of coho salmon is
recovered, extinct, or that the best
scientific or commercial data available
when the species was listed, or the
interpretation of such data, were in
error. Therefore, we find that the
petition does not present substantial
scientific or commercial information
indicating that the petitioned action
may be warranted.
References Cited
A complete list of the references used
in this finding is available upon request
(see ADDRESSES).
Authority: 16 U.S.C. 1531 et seq.
Dated: September 4, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries,
performing the functions and duties of the
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2012–22209 Filed 9–7–12; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648–XC107
Takes of Marine Mammals Incidental to
Specified Activities; Piling and Fill
Removal in Woodard Bay Natural
Resources Conservation Area,
Washington
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; issuance of an incidental
harassment authorization.
AGENCY:
In accordance with the
regulations implementing the Marine
Mammal Protection Act (MMPA) as
amended, notification is hereby given
that we have issued an incidental
SUMMARY:
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harassment authorization (IHA) to the
Washington State Department of Natural
Resources (DNR) to incidentally harass,
by Level B harassment only, harbor
seals during restoration activities within
the Woodard Bay Natural Resources
Conservation Area (NRCA).
DATES: This authorization is effective
from November 1, 2012, through March
15, 2013.
ADDRESSES: A copy of the IHA and
related documents are available by
writing to Michael Payne, Chief, Permits
and Conservation Division, Office of
Protected Resources, National Marine
Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910.
A copy of the application, including
references used in this document, may
be obtained by visiting the Internet at:
https://www.nmfs.noaa.gov/pr/permits/
incidental.htm. For those members of
the public unable to view these
documents on the Internet, a copy may
be obtained by writing to the address
specified above or telephoning the
contact listed below (see FOR FURTHER
INFORMATION CONTACT). Associated
documents prepared pursuant to the
National Environmental Policy Act
(NEPA) are also available at the same
site. Documents cited in this notice may
also be viewed, by appointment, during
regular business hours, at the
aforementioned address.
FOR FURTHER INFORMATION CONTACT: Ben
Laws, Office of Protected Resources,
NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the
MMPA (16 U.S.C. 1361 et seq.) direct
the Secretary of Commerce to allow,
upon request, the incidental, but not
intentional, taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specified
geographical region if certain findings
are made and either regulations are
issued or, if the taking is limited to
harassment, a notice of a proposed
authorization is published in the
Federal Register to provide public
notice and initiate a 30-day comment
period.
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
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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 Level B harassment
as defined below. 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. If authorized, the IHA
may be effective for a period of one year.
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].’’
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Summary of Request
On May 18, 2012, we received an
application from the DNR for an IHA for
the taking, by Level B harassment only,
of small numbers of harbor seals (Phoca
vitulina) incidental to activities
conducted in association with an
ongoing habitat restoration project
within the Woodard Bay NRCA,
Washington. DNR was first issued an
IHA that was valid from November 1,
2010, through February 28, 2011 (75 FR
67951), and was subsequently issued a
second IHA that was valid from
November 1, 2011, through February 28,
2012 (76 FR 67419). Restoration activity
planned for 2012–13 includes removal
of fill and associated materials in
Woodard Bay and Chapman Bay and
removal of creosote pilings and
structure in Chapman Bay. Pilings will
be removed by vibratory hammer
extraction methods or by direct pull
with cables. The superstructure
materials will be removed by excavator
and/or cables suspended from a bargemounted crane. The specified activities
will occur only between November 1
through March 15 (2012–13), and are
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expected to require a maximum total of
approximately 70 days.
Description of the Specified Activity
In accordance with regulations
implementing the MMPA, we published
notice of the proposed IHA in the
Federal Register on July 30, 2012 (77 FR
44583). A complete description of the
action was included in that notice and
will not be reproduced here.
The restoration activities planned
under the IHA include all or part of the
following:
1. Fill Removal
• Remove 13,000 yd3 of fill from
Woodard Bay
• Remove 325 yd3 of fill from Chapman
Bay
• Remove associated creosoted timber,
pilings, metal scraps and concrete
abutment
2. Piling and Structure Removal
• Remove 10,000 ft2 of pier
superstructure and 470 pilings from
Chapman Bay Pier
• Remove 30 anchor piles from
Chapman Bay
Fill removal from Woodard and
Chapman Bays will be accomplished
from the uplands by heavy equipment
and haul trucks. The creosoted pilings
in the fill will be removed from the
uplands by a crane-mounted vibratory
hammer. This portion of the project is
estimated to take approximately 12–14
weeks to complete. The majority of fill
removal work is located in Woodard
Bay, which is separated from the harbor
seal haul-out areas (located in Chapman
Bay) by land. This work will likely
result in less disturbance of harbor seals
than will the work located in Chapman
Bay. In addition, the material to be
removed will be hauled offsite by the
contractor via Whitham Road, which is
the main road into the NRCA and which
leads away from the haul-out area (see
Figure 4 of DNR’s application). Fill
removal will largely occur above the
Ordinary High Water Mark. Fill removal
activities may occur between November
1 and March 15. Chapman Bay fill
removal is roughly 250 m from the
south haul-out and 975 m from the
north haul-out.
Piling and structure removal work
will be accomplished by barge and
skiffs. The pilings will be removed by
vibratory hammer or by direct pull with
cables; both methods are suspended
from a barge-mounted crane. The
vibratory hammer is a large steel device
lowered on top of the pile, which then
grips and vibrates the pile until it is
loosened from the sediment. The pile is
then pulled up by the hammer and
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placed on a barge. For direct pull, a
cable is set around the piling to grip and
lift the pile from the sediment. The
superstructure materials will be
removed by excavator and/or cables
suspended from a barge-mounted crane.
Approximately 500 12- to 24-in
diameter pilings, along with associated
pier superstructure, will be removed
near but not directly adjacent to haulouts. After 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. Pilings that
cannot be removed by hammer or cable,
or that break during extraction, will be
recorded via GPS for divers to relocate
at the final phase of project activities.
The divers will then cut the pilings at
or below the mudline using underwater
chainsaws. Operations will 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. Vibratory extraction
operations may occur between
November 1 and January 15 and are
expected to occur for approximately 20
days over the course of this work
window. Other work days will be spent
removing pier superstructure, which
does not involve vibratory extraction,
but has the potential to result in
behavioral harassment due to the
proximity to working crew. The portion
of the Chapman Bay Pier that will be
removed is approximately 100 m from
the south haul-out area and 250 m from
the north haul out.
Comments and Responses
On July 30, 2012, we published a
notice of proposed IHA (77 FR 44583)
in response to DNR’s request to take
marine mammals incidental to
restoration activities and requested
comments and information concerning
that request. During the 30-day public
comment period, we received comments
from the Marine Mammal Commission
(Commission) on the proposed IHA. No
other comments were received from the
public.
The Commission provided two
recommendations that it has provided
for each of the past two IHAs issued to
DNR for substantially similar work. The
Commission recommends that we (1)
require the DNR to monitor for the
presence of and to characterize behavior
of marine mammals during all proposed
in-water activities; and (2) that we
require monitoring before, during, and
after all soft starts of pile removal
activities to gather the data needed to
determine the effectiveness of this
technique as a mitigation measure. We
disagree with these recommendations,
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and the Commission has not provided
any information that would lead us to
offer different responses from those
offered in the past. Therefore, those
responses, which may be found in past
Federal Register notices (75 FR 67951,
76 FR 67419), are not repeated here.
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Description of Marine Mammals in the
Area of the Specified Activity
The only marine mammal species that
may be harassed incidental to DNR’s
restoration activities is the harbor seal.
Harbor seals are not listed as threatened
or endangered under the ESA, nor are
they categorized as depleted under the
MMPA. We presented a more detailed
discussion of the status of the
Washington inland waters stock of
harbor seals and its occurrence in the
action area in the notice of the proposed
IHA (77 FR 44583; July 30, 2012).
Potential Effects on Marine Mammals
Potential effects of DNR’s activities
are likely to be limited to behavioral
disturbance of seals at the two log boom
haul-outs located in the action area.
Other potential disturbance could result
from the introduction of sound into the
environment as a result of pile removal
activities; however, this is unlikely to
cause an appreciably greater amount of
harassment in either numbers or degree,
in part because it is anticipated that
most seals will be disturbed initially by
physical presence of crews and vessels
or by sound from vessels.
There is a general paucity of data on
sound levels produced by vibratory
extraction of timber piles; however, it is
reasonable to assume that extraction
will not result in higher sound pressure
levels (SPLs) than vibratory installation
of piles. As such, we assume that source
levels from the specified activity will
not be as high as average source levels
for vibratory installation of 12–24 in
steel piles (155–165 dB; Caltrans, 2009).
Our general in-water harassment
thresholds for pinnipeds exposed to
continuous noise, such as that produced
by vibratory pile extraction, are 190 dB
root mean square (rms) re: 1 mPa as the
potential onset of Level A (injurious)
harassment and 120 dB RMS re: 1 mPa
as the potential onset of Level B
(behavioral) harassment.
Vibratory extraction will not result in
sound levels near 190 dB; therefore,
injury will not occur. However, noise
from vibratory extraction will likely
exceed 120 dB near the source and may
induce responses in-water such as
avoidance or other alteration of behavior
at time of exposure. However, seals
flushing from haul-outs in response to
small vessel activity and the presence of
work crews would already be
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considered as ‘harassed’; therefore, any
harassment resulting from exposure to
sound pressure levels above the 120 dB
criterion for behavioral harassment
would not be considered additional.
The airborne sound disturbance
criteria currently used for Level B
harassment is 90 dB rms re: 20 mPa for
harbor seals. Based on information on
airborne source levels measured for pile
driving with vibratory hammer, removal
of wood piles is unlikely to exceed 90
dB; further, the vibratory hammer will
be outfitted with a muffling device
ensuring that airborne SPLs are no
higher than 80 dB.
Potential effects of sound produced by
the action on harbor seals were detailed
in the notice of the proposed IHA (77 FR
44583; July 30, 2012). In short, while it
may be inferred that temporary hearing
impairment (temporary threshold shift;
TTS) could theoretically result from the
DNR project, it is highly unlikely, due
to the source levels and duration of
exposure possible. It is expected that
elevated sound will have only a
negligible probability of causing TTS in
individual seals. Further, seals are likely
to be disturbed via the approach of work
crews and vessels long before the
beginning of any pile removal
operations and would be apprised of the
advent of increased underwater sound
via the soft start of the vibratory
hammer. It is not expected that airborne
sound levels will induce any form of
behavioral harassment, much less TTS
in individual pinnipeds.
The DNR and other organizations,
such as the Cascadia Research
Collective, have been monitoring the
behavior of harbor seals present within
the NRCA since 1977. Past disturbance
observations at Woodard Bay NRCA
have shown that seal harassment results
from the presence of non-motorized
vessels (e.g., recreational kayaks and
canoes), motorized vessels (e.g., fishing
boats), and people (Calambokidis and
Leathery, 1991; Buettner et al., 2008).
Results of these studies are described in
the proposed IHA notice for this action.
Based on these studies, we anticipate
that the presence of work crews and
vessels will result in behavioral
harassment, primarily by flushing seals
off log booms, or by causing short-term
avoidance of the area or similar shortterm behavioral disturbance.
In summary, based on the preceding
discussion and on observations of
harbor seals during past management
activities in Woodard Bay, we have
determined that impacts to harbor seals
during restoration activities will be
limited to behavioral harassment of
limited duration and limited intensity
(i.e., temporary flushing at most)
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resulting from physical disturbance. It is
anticipated that seals would be initially
disturbed by the presence of crew and
vessels associated with the habitat
restoration project. Seals entering the
water following such disturbance could
also be exposed to underwater SPLs
greater than 120 dB (i.e., constituting
harassment); however, given the short
duration and low energy of vibratory
extraction of 12–24 in timber piles, PTS
will not occur and TTS is not likely.
Alternatively, the presence of work
crews and vessels, or the introduction of
sound into the water, could result in
short-term avoidance of the area by seals
seeking to use the haul-out.
Abandonment of any portion of the
haul-out is not expected, as harbor seals
have been documented as quickly
becoming accustomed to the presence of
work crews. During similar activities
carried out under the previous IHAs,
seals showed no signs of abandonment
or of using the haul-outs to a lesser
degree.
Anticipated Effects on Habitat
We provided a detailed discussion of
the potential effects of this action on
marine mammal habitat in the notice of
the proposed IHA (77 FR 44583; July 30,
2012). While marine mammal habitat
will be temporarily ensonified by low
sound levels resulting from habitat
restoration effort, no impacts to the
physical availability of haul-out habitat
will occur. It is expected that, at most,
temporary disturbance of habitat
potentially utilized by harbor seal prey
species may occur as piles are removed.
The DNR’s restoration activities will
result in a long-term net positive gain
for marine mammal habitat, compared
with minimal short-term, temporary
impacts.
Summary of Previous Monitoring
Please see the notice of the proposed
IHA (77 FR 44583; July 30, 2012) for a
summary of previous monitoring.
Mitigation
In order to issue an IHA under
Section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible
methods of taking pursuant to such
activity, and other means of effecting
the least practicable 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 will continue certain
mitigation measures stipulated in the
previous IHAs, designed to minimize
disturbance to harbor seals within the
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action area in consideration of timing,
location, and equipment use. Foremost,
pile, structure, and fill removal will
only occur between November and
March, outside of harbor seal pupping
and molting seasons. Therefore, no
impacts to pups from the specified
activity during these sensitive time
periods will occur. In addition, the
following measures will be
implemented:
• The DNR will approach the action
area slowly to alert seals to their
presence from a distance and will begin
pulling piles at the farthest location
from the log booms used as harbor seal
haul-out areas;
• No piles within 30 yd (27 m) of the
two main haul-out locations identified
in the IHA application will be removed;
• The contractor or observer will
survey the operational area for seals
before initiating activities and wait until
the seals are at a sufficient distance (i.e.,
50 ft [15 m]) from the activity so as to
minimize the risk of direct injury from
the equipment or from a piling or
structure breaking free;
• The DNR will require the contractor
to initiate a vibratory hammer soft start
at the beginning of each work day; and
• The vibratory hammer power pack
will be outfitted with a muffler to
reduce in-air noise levels to a maximum
of 80 dB.
The soft start method involves a
reduced energy vibration from the
hammer for the first 15 seconds and
then a 30-second waiting period. This
method will be repeated twice before
commencing with operations at full
power.
We have carefully evaluated the
applicant’s mitigation measures as
proposed and considered their
effectiveness in past implementation to
determine whether they are likely to
effect the least practicable adverse
impact on the affected marine mammal
species and stocks and their habitat. Our
evaluation of potential measures
includes 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; (3) the
practicability of the measure for
applicant implementation, including
consideration of personnel safety, and
practicality of implementation.
Injury, serious injury, or mortality to
pinnipeds could likely only result from
startling animals inhabiting the haul-out
into a stampede reaction. Even in the
event that such a reaction occurred, it is
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unlikely that it will result in injury,
serious injury, or mortality, as the
activities will occur outside of the
pupping season, and access to the water
from the haul-outs is relatively easy and
unimpeded. However, DNR will
approach haul-outs gradually from a
distance, and will begin daily work at
the farthest distance from the haul-out
in order to eliminate the possibility of
such events. During the previous years
of work under our authorization,
implementation of similar mitigation
measures has resulted in no known
injury, serious injury, or mortality (other
than one event considered atypical and
outside the scope of the mitigation
measures considered in relation to
disturbing seals from the haul-outs).
Based upon the DNR’s record of
management in the NRCA, as well as
information from monitoring DNR’s
implementation of the improved
mitigation measures as prescribed under
the previous IHAs, we have determined
that the planned mitigation measures
provide the means of effecting the least
practicable adverse impacts on marine
mammal species or stocks and their
habitat.
Monitoring and Reporting
In order to issue an ITA for an
activity, Section 101(a)(5)(D) of the
MMPA states that we 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.
DNR’s monitoring plan adheres to
protocols already established for
Woodard Bay to the maximum extent
practical for the specified activity.
Monitoring of both the north and south
haul-outs will occur for a total of 15
work days, during the first 5 days of
project activities, when the contractors
are mobilizing and starting use of the
vibratory hammer; during 5 days when
activities are occurring closest to the
haul-out areas; and during 5 additional
days, to include days when fill removal
is occurring in Woodard Bay. It is not
expected that Woodard Bay fill removal
will result in seal disturbance; however,
the stipulation that monitoring be
conducted while this activity occurs is
intended to ensure that such is the case.
Monitoring of both haul-outs will be
performed by at least one observer. The
observer will (1) be on-site prior to crew
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and vessel arrival to determine the
number of seals present pre-disturbance;
(2) maintain a low profile during this
time to minimize disturbance from
monitoring; and (3) conduct monitoring
beginning 30 minutes prior to crew
arrival, during pile removal activities,
and for 30 minutes after crew leave the
site.
The observer will record incidental
takes (i.e., numbers of seals flushed
from the haul-out). This information
will be determined by recording the
number of seals using the haul-out on
each monitoring day prior to the start of
restoration activities and recording the
number of seals that flush from the
haul-out 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 to the disturbed
animals, and observable behavioral
reactions to specific disturbances will
also be noted. In addition, the observer
will record:
• The number of seals using the haulout on each monitoring day prior to the
start of restoration activities for that day;
• Seal behavior before, during and
after pile and structure removal;
• Monitoring dates, times and
conditions;
• Dates of all pile and structure
removal activities; and
• After correcting for observation
effort, the number of seals taken over
the duration of the habitat restoration
project.
Within 30 days of the completion of
the project, DNR will submit a
monitoring report that will include a
summary of findings and copies of field
data sheets and relevant daily logs from
the contractor.
Estimated Take by Incidental
Harassment
We are authorizing DNR to take
harbor seals, by Level B harassment
only, incidental to specified restoration
activities. These activities, involving
extraction of creosoted timber piles and
removal of derelict pier superstructure
and fill, are expected to harass marine
mammals present in the vicinity of the
project site through behavioral
disturbance only. Estimates of the
number of marine mammals that may be
harassed by the activities are based
upon actual counts of harbor seals
harassed during days monitored under
the previous IHAs, and the estimated
total number of working days.
Methodology of take estimation was
discussed in detail in our notice of
proposed IHA (77 FR 44583; July 30,
2012).
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DNR considers that 40 total work days
(as opposed to the total work window,
and not including days spent removing
fill from the Woodard Bay area) may
occur, potentially resulting in incidental
harassment of harbor seals. Using the
average count from monitoring under
the previous IHAs, the result is an
estimated incidental take of 1,680
harbor seals (40 days × 42 seals per day).
We consider this to be a highly
conservative estimate in comparison
with the estimated actual take of 875
seals from 2010 and 231 seals from
2011, which is nonetheless based upon
the best available information.
Negligible Impact and Small Numbers
Analysis and Determination
We have 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 determining whether or not
authorized incidental take will have a
negligible impact on affected species
stocks, we consider a number of criteria
regarding the impact of the proposed
action, including the number, nature,
intensity, and duration of Level B
harassment take that may occur.
Although DNR’s restoration activities
may harass pinnipeds hauled out in
Woodard Bay, impacts are occurring to
a small, localized group of animals. No
mortality or injury is anticipated or
authorized, and the specified activity is
not expected to result in long-term
impacts such as permanent
abandonment of the haul-out. Seals will
likely become alert or, at most, flush
into the water in reaction to the
presence of crews and equipment.
However, seals have been observed as
becoming habituated to physical
presence of work crews, and quickly reinhabit haul-outs upon cessation of
stimulus. In addition, the specified
restoration actions may provide
improved habitat function for seals,
both indirectly through a healthier prey
base and directly through restoration
and maintenance of man-made haul-out
habitat. No impacts are expected at the
population or stock level.
No pinniped stocks known from the
action area are listed as threatened or
endangered under the ESA or
determined to be strategic or depleted
under the MMPA. Recent data suggests
that harbor seal populations have
reached carrying capacity.
Although the estimated take of 1,680
is 11 percent of the estimated
population of 14,612 for the Washington
Inland Waters stock of harbor seals, the
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16:57 Sep 07, 2012
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number of individual seals harassed
will be lower, with individual seals
likely harassed multiple times. In
addition, although the estimated take is
based upon the best information
available, we consider the estimate to be
highly conservative. For similar
restoration activities in 2010–11,
estimated actual take was much lower
(875 seals over 35 work days in 2010
and 231 seals over 21 work days in
2011).
Mitigation measures will minimize
onset of sudden and potentially
dangerous reactions and overall
disturbance. In addition, restoration
work is not likely to affect seals at both
haul-outs simultaneously, based on
location of the crew and barge. Further,
although seals may initially flush into
the water, based on previous
disturbance studies and maintenance
activity at the haul-outs, the DNR
expects seals will quickly habituate to
piling and structure removal operations.
For these reasons no long term or
permanent abandonment of the haul-out
is anticipated. Much of the work
planned for 2012–13 consists of fill
removal, which does not require inwater work or vessel support, and is
largely located in Woodard Bay, which
is shielded from the haul-out locations
by land. The specified activity is not
anticipated to result in injury, serious
injury, or mortality to any harbor seal.
The DNR will not conduct habitat
restoration operations during the
pupping and molting season; therefore,
no pups will be affected by the specified
activity and no impacts to any seals will
occur as a result of the specified activity
during these sensitive time periods.
Based on the foregoing analysis,
behavioral disturbance to pinnipeds in
Woodard Bay will be of low intensity
and limited duration. To ensure
minimal disturbance, DNR will
implement the mitigation measures
described previously, which we have
determined will serve as the means for
effecting the least practicable adverse
effect on marine mammal stocks or
populations and their habitat. We find
that DNR’s restoration activities will
result in the incidental take of small
numbers of marine mammals, and that
the requested number of takes will have
no more than a negligible impact on the
affected species and 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.
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55463
Endangered Species Act (ESA)
There are no ESA-listed marine
mammals found in the action area;
therefore, no consultation under the
ESA is required.
National Environmental Policy Act
(NEPA)
In compliance with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.), as implemented by
the regulations published by the
Council on Environmental Quality (40
CFR parts 1500–1508), and NOAA
Administrative Order 216–6, we
prepared an Environmental Assessment
(EA) to consider the direct, indirect and
cumulative effects to the human
environment resulting from issuance of
an IHA to DNR. We signed a Finding of
No Significant Impact on October 27,
2010. We have reviewed the application
and determined that there are no
substantial changes to the action or new
environmental impacts or concerns.
Therefore, we have determined that a
new or supplemental EA or
Environmental Impact Statement is
unnecessary. The EA referenced above
is available for review at https://
www.nmfs.noaa.gov/pr/permits/
incidental.htm.
Determinations
We have determined that the impact
of conducting the specific activities
described in this notice and in the IHA
request in Woodard Bay, Washington
may result, at worst, in temporary
modifications in behavior (Level B
harassment) of small numbers of marine
mammals. Further, this activity is
expected to result in a negligible impact
on the affected stock of marine
mammals. The provision requiring that
the activity not have an unmitigable
impact on the availability of the affected
species or stock of marine mammals for
subsistence uses is not implicated for
this action.
Authorization
As a result of these determinations,
we have issued an IHA to DNR to
conduct habitat restoration activities in
Woodard Bay during the period of
November 1, 2012, through March 15,
2013, provided the previously
mentioned mitigation, monitoring, and
reporting requirements are incorporated.
Dated: September 4, 2012.
Helen M. Golde,
Acting Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2012–22211 Filed 9–7–12; 8:45 am]
BILLING CODE 3510–22–P
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[Federal Register Volume 77, Number 175 (Monday, September 10, 2012)]
[Notices]
[Pages 55459-55463]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22211]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XC107
Takes of Marine Mammals Incidental to Specified Activities;
Piling and Fill Removal in Woodard Bay Natural Resources Conservation
Area, Washington
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that we have issued an incidental harassment authorization (IHA) to the
Washington State Department of Natural Resources (DNR) to incidentally
harass, by Level B harassment only, harbor seals during restoration
activities within the Woodard Bay Natural Resources Conservation Area
(NRCA).
DATES: This authorization is effective from November 1, 2012, through
March 15, 2013.
ADDRESSES: A copy of the IHA and related documents are available by
writing to Michael Payne, Chief, Permits and Conservation Division,
Office of Protected Resources, National Marine Fisheries Service, 1315
East-West Highway, Silver Spring, MD 20910.
A copy of the application, including references used in this
document, may be obtained by visiting the Internet at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm. For those members of the
public unable to view these documents on the Internet, a copy may be
obtained by writing to the address specified above or telephoning the
contact listed below (see FOR FURTHER INFORMATION CONTACT). Associated
documents prepared pursuant to the National Environmental Policy Act
(NEPA) are also available at the same site. Documents cited in this
notice may also be viewed, by appointment, during regular business
hours, at the aforementioned address.
FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce to allow, upon request, the
incidental, but not intentional, taking of small numbers of marine
mammals by U.S. citizens who engage in a specified activity (other than
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed authorization is
published in the Federal Register to provide public notice and initiate
a 30-day comment period.
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
[[Page 55460]]
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 Level B
harassment as defined below. 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.
If authorized, the IHA may be effective for a period of one year.
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 May 18, 2012, we received an application from the DNR for an IHA
for the taking, by Level B harassment only, of small numbers of harbor
seals (Phoca vitulina) incidental to activities conducted in
association with an ongoing habitat restoration project within the
Woodard Bay NRCA, Washington. DNR was first issued an IHA that was
valid from November 1, 2010, through February 28, 2011 (75 FR 67951),
and was subsequently issued a second IHA that was valid from November
1, 2011, through February 28, 2012 (76 FR 67419). Restoration activity
planned for 2012-13 includes removal of fill and associated materials
in Woodard Bay and Chapman Bay and removal of creosote pilings and
structure in Chapman Bay. Pilings will be removed by vibratory hammer
extraction methods or by direct pull with cables. The superstructure
materials will be removed by excavator and/or cables suspended from a
barge-mounted crane. The specified activities will occur only between
November 1 through March 15 (2012-13), and are expected to require a
maximum total of approximately 70 days.
Description of the Specified Activity
In accordance with regulations implementing the MMPA, we published
notice of the proposed IHA in the Federal Register on July 30, 2012 (77
FR 44583). A complete description of the action was included in that
notice and will not be reproduced here.
The restoration activities planned under the IHA include all or
part of the following:
1. Fill Removal
Remove 13,000 yd\3\ of fill from Woodard Bay
Remove 325 yd\3\ of fill from Chapman Bay
Remove associated creosoted timber, pilings, metal scraps and
concrete abutment
2. Piling and Structure Removal
Remove 10,000 ft\2\ of pier superstructure and 470 pilings
from Chapman Bay Pier
Remove 30 anchor piles from Chapman Bay
Fill removal from Woodard and Chapman Bays will be accomplished
from the uplands by heavy equipment and haul trucks. The creosoted
pilings in the fill will be removed from the uplands by a crane-mounted
vibratory hammer. This portion of the project is estimated to take
approximately 12-14 weeks to complete. The majority of fill removal
work is located in Woodard Bay, which is separated from the harbor seal
haul-out areas (located in Chapman Bay) by land. This work will likely
result in less disturbance of harbor seals than will the work located
in Chapman Bay. In addition, the material to be removed will be hauled
offsite by the contractor via Whitham Road, which is the main road into
the NRCA and which leads away from the haul-out area (see Figure 4 of
DNR's application). Fill removal will largely occur above the Ordinary
High Water Mark. Fill removal activities may occur between November 1
and March 15. Chapman Bay fill removal is roughly 250 m from the south
haul-out and 975 m from the north haul-out.
Piling and structure removal work will be accomplished by barge and
skiffs. The pilings will be removed by vibratory hammer or by direct
pull with cables; both methods are suspended from a barge-mounted
crane. The vibratory hammer is a large steel device lowered on top of
the pile, which then grips and vibrates the pile until it is loosened
from the sediment. The pile is then pulled up by the hammer and placed
on a barge. For direct pull, a cable is set around the piling to grip
and lift the pile from the sediment. The superstructure materials will
be removed by excavator and/or cables suspended from a barge-mounted
crane.
Approximately 500 12- to 24-in diameter pilings, along with
associated pier superstructure, will be removed near but not directly
adjacent to haul-outs. After 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. Pilings that cannot be removed by hammer or
cable, or that break during extraction, will be recorded via GPS for
divers to relocate at the final phase of project activities. The divers
will then cut the pilings at or below the mudline using underwater
chainsaws. Operations will 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.
Vibratory extraction operations may occur between November 1 and
January 15 and are expected to occur for approximately 20 days over the
course of this work window. Other work days will be spent removing pier
superstructure, which does not involve vibratory extraction, but has
the potential to result in behavioral harassment due to the proximity
to working crew. The portion of the Chapman Bay Pier that will be
removed is approximately 100 m from the south haul-out area and 250 m
from the north haul out.
Comments and Responses
On July 30, 2012, we published a notice of proposed IHA (77 FR
44583) in response to DNR's request to take marine mammals incidental
to restoration activities and requested comments and information
concerning that request. During the 30-day public comment period, we
received comments from the Marine Mammal Commission (Commission) on the
proposed IHA. No other comments were received from the public.
The Commission provided two recommendations that it has provided
for each of the past two IHAs issued to DNR for substantially similar
work. The Commission recommends that we (1) require the DNR to monitor
for the presence of and to characterize behavior of marine mammals
during all proposed in-water activities; and (2) that we require
monitoring before, during, and after all soft starts of pile removal
activities to gather the data needed to determine the effectiveness of
this technique as a mitigation measure. We disagree with these
recommendations,
[[Page 55461]]
and the Commission has not provided any information that would lead us
to offer different responses from those offered in the past. Therefore,
those responses, which may be found in past Federal Register notices
(75 FR 67951, 76 FR 67419), are not repeated here.
Description of Marine Mammals in the Area of the Specified Activity
The only marine mammal species that may be harassed incidental to
DNR's restoration activities is the harbor seal. Harbor seals are not
listed as threatened or endangered under the ESA, nor are they
categorized as depleted under the MMPA. We presented a more detailed
discussion of the status of the Washington inland waters stock of
harbor seals and its occurrence in the action area in the notice of the
proposed IHA (77 FR 44583; July 30, 2012).
Potential Effects on Marine Mammals
Potential effects of DNR's activities are likely to be limited to
behavioral disturbance of seals at the two log boom haul-outs located
in the action area. Other potential disturbance could result from the
introduction of sound into the environment as a result of pile removal
activities; however, this is unlikely to cause an appreciably greater
amount of harassment in either numbers or degree, in part because it is
anticipated that most seals will be disturbed initially by physical
presence of crews and vessels or by sound from vessels.
There is a general paucity of data on sound levels produced by
vibratory extraction of timber piles; however, it is reasonable to
assume that extraction will not result in higher sound pressure levels
(SPLs) than vibratory installation of piles. As such, we assume that
source levels from the specified activity will not be as high as
average source levels for vibratory installation of 12-24 in steel
piles (155-165 dB; Caltrans, 2009). Our general in-water harassment
thresholds for pinnipeds exposed to continuous noise, such as that
produced by vibratory pile extraction, are 190 dB root mean square
(rms) re: 1 [mu]Pa as the potential onset of Level A (injurious)
harassment and 120 dB RMS re: 1 [mu]Pa as the potential onset of Level
B (behavioral) harassment.
Vibratory extraction will not result in sound levels near 190 dB;
therefore, injury will not occur. However, noise from vibratory
extraction will likely exceed 120 dB near the source and may induce
responses in-water such as avoidance or other alteration of behavior at
time of exposure. However, seals flushing from haul-outs in response to
small vessel activity and the presence of work crews would already be
considered as `harassed'; therefore, any harassment resulting from
exposure to sound pressure levels above the 120 dB criterion for
behavioral harassment would not be considered additional.
The airborne sound disturbance criteria currently used for Level B
harassment is 90 dB rms re: 20 [mu]Pa for harbor seals. Based on
information on airborne source levels measured for pile driving with
vibratory hammer, removal of wood piles is unlikely to exceed 90 dB;
further, the vibratory hammer will be outfitted with a muffling device
ensuring that airborne SPLs are no higher than 80 dB.
Potential effects of sound produced by the action on harbor seals
were detailed in the notice of the proposed IHA (77 FR 44583; July 30,
2012). In short, while it may be inferred that temporary hearing
impairment (temporary threshold shift; TTS) could theoretically result
from the DNR project, it is highly unlikely, due to the source levels
and duration of exposure possible. It is expected that elevated sound
will have only a negligible probability of causing TTS in individual
seals. Further, seals are likely to be disturbed via the approach of
work crews and vessels long before the beginning of any pile removal
operations and would be apprised of the advent of increased underwater
sound via the soft start of the vibratory hammer. It is not expected
that airborne sound levels will induce any form of behavioral
harassment, much less TTS in individual pinnipeds.
The DNR and other organizations, such as the Cascadia Research
Collective, have been monitoring the behavior of harbor seals present
within the NRCA since 1977. Past disturbance observations at Woodard
Bay NRCA have shown that seal harassment results from the presence of
non-motorized vessels (e.g., recreational kayaks and canoes), motorized
vessels (e.g., fishing boats), and people (Calambokidis and Leathery,
1991; Buettner et al., 2008). Results of these studies are described in
the proposed IHA notice for this action. Based on these studies, we
anticipate that the presence of work crews and vessels will result in
behavioral harassment, primarily by flushing seals off log booms, or by
causing short-term avoidance of the area or similar short-term
behavioral disturbance.
In summary, based on the preceding discussion and on observations
of harbor seals during past management activities in Woodard Bay, we
have determined that impacts to harbor seals during restoration
activities will be limited to behavioral harassment of limited duration
and limited intensity (i.e., temporary flushing at most) resulting from
physical disturbance. It is anticipated that seals would be initially
disturbed by the presence of crew and vessels associated with the
habitat restoration project. Seals entering the water following such
disturbance could also be exposed to underwater SPLs greater than 120
dB (i.e., constituting harassment); however, given the short duration
and low energy of vibratory extraction of 12-24 in timber piles, PTS
will not occur and TTS is not likely. Alternatively, the presence of
work crews and vessels, or the introduction of sound into the water,
could result in short-term avoidance of the area by seals seeking to
use the haul-out. Abandonment of any portion of the haul-out is not
expected, as harbor seals have been documented as quickly becoming
accustomed to the presence of work crews. During similar activities
carried out under the previous IHAs, seals showed no signs of
abandonment or of using the haul-outs to a lesser degree.
Anticipated Effects on Habitat
We provided a detailed discussion of the potential effects of this
action on marine mammal habitat in the notice of the proposed IHA (77
FR 44583; July 30, 2012). While marine mammal habitat will be
temporarily ensonified by low sound levels resulting from habitat
restoration effort, no impacts to the physical availability of haul-out
habitat will occur. It is expected that, at most, temporary disturbance
of habitat potentially utilized by harbor seal prey species may occur
as piles are removed. The DNR's restoration activities will result in a
long-term net positive gain for marine mammal habitat, compared with
minimal short-term, temporary impacts.
Summary of Previous Monitoring
Please see the notice of the proposed IHA (77 FR 44583; July 30,
2012) for a summary of previous monitoring.
Mitigation
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to such
activity, and other means of effecting the least practicable 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 will continue certain mitigation measures stipulated in the
previous IHAs, designed to minimize disturbance to harbor seals within
the
[[Page 55462]]
action area in consideration of timing, location, and equipment use.
Foremost, pile, structure, and fill removal will only occur between
November and March, outside of harbor seal pupping and molting seasons.
Therefore, no impacts to pups from the specified activity during these
sensitive time periods will occur. In addition, the following measures
will be implemented:
The DNR will approach the action area slowly to alert
seals to their presence from a distance and will begin pulling piles at
the farthest location from the log booms used as harbor seal haul-out
areas;
No piles within 30 yd (27 m) of the two main haul-out
locations identified in the IHA application will be removed;
The contractor or observer will survey the operational
area for seals before initiating activities and wait until the seals
are at a sufficient distance (i.e., 50 ft [15 m]) from the activity so
as to minimize the risk of direct injury from the equipment or from a
piling or structure breaking free;
The DNR will require the contractor to initiate a
vibratory hammer soft start at the beginning of each work day; and
The vibratory hammer power pack will be outfitted with a
muffler to reduce in-air noise levels to a maximum of 80 dB.
The soft start method involves a reduced energy vibration from the
hammer for the first 15 seconds and then a 30-second waiting period.
This method will be repeated twice before commencing with operations at
full power.
We have carefully evaluated the applicant's mitigation measures as
proposed and considered their effectiveness in past implementation to
determine whether they are likely to effect the least practicable
adverse impact on the affected marine mammal species and stocks and
their habitat. Our evaluation of potential measures includes
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; (3) the practicability
of the measure for applicant implementation, including consideration of
personnel safety, and practicality of implementation.
Injury, serious injury, or mortality to pinnipeds could likely only
result from startling animals inhabiting the haul-out into a stampede
reaction. Even in the event that such a reaction occurred, it is
unlikely that it will result in injury, serious injury, or mortality,
as the activities will occur outside of the pupping season, and access
to the water from the haul-outs is relatively easy and unimpeded.
However, DNR will approach haul-outs gradually from a distance, and
will begin daily work at the farthest distance from the haul-out in
order to eliminate the possibility of such events. During the previous
years of work under our authorization, implementation of similar
mitigation measures has resulted in no known injury, serious injury, or
mortality (other than one event considered atypical and outside the
scope of the mitigation measures considered in relation to disturbing
seals from the haul-outs). Based upon the DNR's record of management in
the NRCA, as well as information from monitoring DNR's implementation
of the improved mitigation measures as prescribed under the previous
IHAs, we have determined that the planned mitigation measures provide
the means of effecting the least practicable adverse impacts on marine
mammal species or stocks and their habitat.
Monitoring and Reporting
In order to issue an ITA for an activity, Section 101(a)(5)(D) of
the MMPA states that we 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.
DNR's monitoring plan adheres to protocols already established for
Woodard Bay to the maximum extent practical for the specified activity.
Monitoring of both the north and south haul-outs will occur for a total
of 15 work days, during the first 5 days of project activities, when
the contractors are mobilizing and starting use of the vibratory
hammer; during 5 days when activities are occurring closest to the
haul-out areas; and during 5 additional days, to include days when fill
removal is occurring in Woodard Bay. It is not expected that Woodard
Bay fill removal will result in seal disturbance; however, the
stipulation that monitoring be conducted while this activity occurs is
intended to ensure that such is the case. Monitoring of both haul-outs
will be performed by at least one observer. The observer will (1) be
on-site prior to crew and vessel arrival to determine the number of
seals present pre-disturbance; (2) maintain a low profile during this
time to minimize disturbance from monitoring; and (3) conduct
monitoring beginning 30 minutes prior to crew arrival, during pile
removal activities, and for 30 minutes after crew leave the site.
The observer will record incidental takes (i.e., numbers of seals
flushed from the haul-out). This information will be determined by
recording the number of seals using the haul-out on each monitoring day
prior to the start of restoration activities and recording the number
of seals that flush from the haul-out 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 to the disturbed animals, and observable behavioral
reactions to specific disturbances will also be noted. In addition, the
observer will record:
The number of seals using the haul-out on each monitoring
day prior to the start of restoration activities for that day;
Seal behavior before, during and after pile and structure
removal;
Monitoring dates, times and conditions;
Dates of all pile and structure removal activities; and
After correcting for observation effort, the number of
seals taken over the duration of the habitat restoration project.
Within 30 days of the completion of the project, DNR will submit a
monitoring report that will include a summary of findings and copies of
field data sheets and relevant daily logs from the contractor.
Estimated Take by Incidental Harassment
We are authorizing DNR to take harbor seals, by Level B harassment
only, incidental to specified restoration activities. These activities,
involving extraction of creosoted timber piles and removal of derelict
pier superstructure and fill, are expected to harass marine mammals
present in the vicinity of the project site through behavioral
disturbance only. Estimates of the number of marine mammals that may be
harassed by the activities are based upon actual counts of harbor seals
harassed during days monitored under the previous IHAs, and the
estimated total number of working days. Methodology of take estimation
was discussed in detail in our notice of proposed IHA (77 FR 44583;
July 30, 2012).
[[Page 55463]]
DNR considers that 40 total work days (as opposed to the total work
window, and not including days spent removing fill from the Woodard Bay
area) may occur, potentially resulting in incidental harassment of
harbor seals. Using the average count from monitoring under the
previous IHAs, the result is an estimated incidental take of 1,680
harbor seals (40 days x 42 seals per day). We consider this to be a
highly conservative estimate in comparison with the estimated actual
take of 875 seals from 2010 and 231 seals from 2011, which is
nonetheless based upon the best available information.
Negligible Impact and Small Numbers Analysis and Determination
We have 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 determining whether or not authorized incidental take
will have a negligible impact on affected species stocks, we consider a
number of criteria regarding the impact of the proposed action,
including the number, nature, intensity, and duration of Level B
harassment take that may occur. Although DNR's restoration activities
may harass pinnipeds hauled out in Woodard Bay, impacts are occurring
to a small, localized group of animals. No mortality or injury is
anticipated or authorized, and the specified activity is not expected
to result in long-term impacts such as permanent abandonment of the
haul-out. Seals will likely become alert or, at most, flush into the
water in reaction to the presence of crews and equipment. However,
seals have been observed as becoming habituated to physical presence of
work crews, and quickly re-inhabit haul-outs upon cessation of
stimulus. In addition, the specified restoration actions may provide
improved habitat function for seals, both indirectly through a
healthier prey base and directly through restoration and maintenance of
man-made haul-out habitat. No impacts are expected at the population or
stock level.
No pinniped stocks known from the action area are listed as
threatened or endangered under the ESA or determined to be strategic or
depleted under the MMPA. Recent data suggests that harbor seal
populations have reached carrying capacity.
Although the estimated take of 1,680 is 11 percent of the estimated
population of 14,612 for the Washington Inland Waters stock of harbor
seals, the number of individual seals harassed will be lower, with
individual seals likely harassed multiple times. In addition, although
the estimated take is based upon the best information available, we
consider the estimate to be highly conservative. For similar
restoration activities in 2010-11, estimated actual take was much lower
(875 seals over 35 work days in 2010 and 231 seals over 21 work days in
2011).
Mitigation measures will minimize onset of sudden and potentially
dangerous reactions and overall disturbance. In addition, restoration
work is not likely to affect seals at both haul-outs simultaneously,
based on location of the crew and barge. Further, although seals may
initially flush into the water, based on previous disturbance studies
and maintenance activity at the haul-outs, the DNR expects seals will
quickly habituate to piling and structure removal operations. For these
reasons no long term or permanent abandonment of the haul-out is
anticipated. Much of the work planned for 2012-13 consists of fill
removal, which does not require in-water work or vessel support, and is
largely located in Woodard Bay, which is shielded from the haul-out
locations by land. The specified activity is not anticipated to result
in injury, serious injury, or mortality to any harbor seal. The DNR
will not conduct habitat restoration operations during the pupping and
molting season; therefore, no pups will be affected by the specified
activity and no impacts to any seals will occur as a result of the
specified activity during these sensitive time periods.
Based on the foregoing analysis, behavioral disturbance to
pinnipeds in Woodard Bay will be of low intensity and limited duration.
To ensure minimal disturbance, DNR will implement the mitigation
measures described previously, which we have determined will serve as
the means for effecting the least practicable adverse effect on marine
mammal stocks or populations and their habitat. We find that DNR's
restoration activities will result in the incidental take of small
numbers of marine mammals, and that the requested number of takes will
have no more than a negligible impact on the affected species and
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)
There are no ESA-listed marine mammals found in the action area;
therefore, no consultation under the ESA is required.
National Environmental Policy Act (NEPA)
In compliance with the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.), as implemented by the regulations published
by the Council on Environmental Quality (40 CFR parts 1500-1508), and
NOAA Administrative Order 216-6, we prepared an Environmental
Assessment (EA) to consider the direct, indirect and cumulative effects
to the human environment resulting from issuance of an IHA to DNR. We
signed a Finding of No Significant Impact on October 27, 2010. We have
reviewed the application and determined that there are no substantial
changes to the action or new environmental impacts or concerns.
Therefore, we have determined that a new or supplemental EA or
Environmental Impact Statement is unnecessary. The EA referenced above
is available for review at https://www.nmfs.noaa.gov/pr/permits/incidental.htm.
Determinations
We have determined that the impact of conducting the specific
activities described in this notice and in the IHA request in Woodard
Bay, Washington may result, at worst, in temporary modifications in
behavior (Level B harassment) of small numbers of marine mammals.
Further, this activity is expected to result in a negligible impact on
the affected stock of marine mammals. The provision requiring that the
activity not have an unmitigable impact on the availability of the
affected species or stock of marine mammals for subsistence uses is not
implicated for this action.
Authorization
As a result of these determinations, we have issued an IHA to DNR
to conduct habitat restoration activities in Woodard Bay during the
period of November 1, 2012, through March 15, 2013, provided the
previously mentioned mitigation, monitoring, and reporting requirements
are incorporated.
Dated: September 4, 2012.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2012-22211 Filed 9-7-12; 8:45 am]
BILLING CODE 3510-22-P
