Takes of Marine Mammals Incidental to Specified Activities; Construction Activities of the Children's Pool Lifeguard Station at La Jolla, CA, 8160-8177 [2014-02893]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 79, Number 28 (Tuesday, February 11, 2014)]
[Notices]
[Pages 8160-8177]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-02893]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD022


Takes of Marine Mammals Incidental to Specified Activities; 
Construction Activities of the Children's Pool Lifeguard Station at La 
Jolla, CA

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 City of San Diego 
for an Incidental Harassment Authorization (IHA) to take small numbers 
of marine mammals, by Level B harassment, incidental to construction 
activities of the Children's Pool Lifeguard Station in La Jolla, CA. 
NMFS has reviewed the application, including all supporting documents, 
and determined that it is adequate and complete. Pursuant to the Marine 
Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue an IHA to the City of San Diego to take, by Level B 
harassment only, three species of marine mammals during the specified 
activities.

DATES: Comments and information must be received no later than March 
13, 2014.

ADDRESSES: Comments on the application should be addressed to P. 
Michael Payne, Chief, Permits and Conservation Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910. The mailbox address for providing 
email comments is ITP.Goldstein@noaa.gov. Please include 0648-XD022 in 
the subject line. NMFS is not responsible for email comments sent to 
addresses other than the one provided here. Comments sent via email, 
including all attachments, must not exceed a 10-megabyte file size.
    All comments received are a part of the public record and will 
generally be posted to https://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 IHA 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 the Internet at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this 
notice, including the IHA application, may be viewed, by appointment, 
during regular business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Howard Goldstein or Jolie Harrison, 
Office of Protected Resources, NMFS, 301-427-8401.

SUPPLEMENTARY INFORMATION: 

Background

    Section 101(a)(5)(D) of the MMPA, as amended (16 U.S.C. 1371 
(a)(5)(D)), directs the Secretary of Commerce (Secretary) to allow, 
upon request, the incidental, but not intentional, taking of small 
numbers of marine mammals of a species or population stock, by United 
States citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and, if the taking is limited to harassment, a notice 
of a proposed authorization is provided to the public for review.
    Authorization for the incidental taking of small numbers of marine 
mammals shall be granted if NMFS finds that the taking will have a 
negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses (where relevant). The authorization must 
set forth the permissible methods of taking, other means of effecting 
the

[[Page 8161]]

least practicable adverse impact on the species or stock and its 
habitat, and requirements pertaining to the mitigation, monitoring and 
reporting of such takings. NMFS has defined ``negligible impact'' in 50 
CFR 216.103 as ``. . . an impact resulting from the specified activity 
that cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species or stock through effects on annual rates 
of recruitment or survival.''
    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) of the MMPA establishes a 45-day time limit for 
NMFS's review of an application followed by a 30-day public notice and 
comment period on any proposed authorizations for the incidental 
harassment of small numbers of marine mammals. Within 45 days of the 
close of the public comment period, NMFS must either issue or deny the 
authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment]. 16 U.S.C. 1362(18).

Summary of Request

    On November 26, 2013, NMFS received an application from the City of 
San Diego, Engineering and Capital Projects Department, requesting an 
IHA. The requested IHA would authorize the take, by Level B 
(behavioral) harassment, of small numbers of Pacific harbor seals 
(Phoca vitulina richardii), California sea lions (Zalophus 
californianus), and northern elephant seals (Mirounga angustirostris) 
incidental to construction activities of the Children's Pool Lifeguard 
Station at La Jolla, CA. Because the proposed construction activities 
were subject to delays and cannot be completed by December 15, 2013, 
the City of San Diego has requested a renewal of the 2013 to 2014 IHA 
for an additional year. The construction operations are planned to take 
place during June 2014 to June 2015 in La Jolla, CA. Regarding the 
previous IHA, NMFS published a notice in the Federal Register (78 FR 
25958) on May 3, 2013, making preliminary determinations and proposing 
to issue an IHA. The notice initiated a 30-day public comment period. 
On July 8, 2013, NMFS published a notice in the Federal Register (78 FR 
40705) announcing the issuance of an IHA. Additional information on the 
construction activities at the Children's Pool Lifeguard Station is 
contained in the IHA application, which is available upon request (see 
ADDRESSES).

Description of the Proposed Specified Activity

    The Children's Pool was created in 1931 by building a breakwater 
wall which created a protected pool for swimming. This pool has 
partially filled with sand, but still has open water for swimming, as 
well as a beach for sunbathing and beachcombing. The Children's Pool 
and nearby shore areas (i.e., shoreline, beaches, and reefs of La 
Jolla) are used by swimmers, sunbathers, SCUBA divers and snorkelers, 
shore/surf fishermen, school classes, tide pool explorers, kayakers, 
surfers, boogie and skim boarders, seal, sea lion, bird and nature 
watchers as well as other activities by the general public. Over the 
last three years (2010 through 2012), an average of 1,556,184 people 
have visited the Children's Pool and lifeguards have taken an average 
of 8,147 preventive actions and 86 water rescues annually (CASA, 2010; 
2011; 2012). The previous lifeguard facility was built in 1967, it is 
old, deteriorating from saltwater intrusion, and no longer serves 
neither the needs of the lifeguard staff nor the beach-going public. 
The structure was condemned on February 22, 2008 due to its 
deteriorated conditions and the lack of structural integrity; 
therefore, it can no longer be used in its current state. Since the 
existing building is no longer viable, a temporary lifeguard tower was 
moved in, but because of basic year-round working condition needs for 
the lifeguards and the demand for lifeguard services, a new station is 
required. The overall project includes the demolition of the existing 
lifeguard station and construction of a new, three-story, lifeguard 
station on the same site. Demolition of the existing lifeguard station 
was completed during 2013 and construction of the new lifeguard station 
is expected to be completed during 2014. The new facility will have an 
observation tower, first aid room, male/female locker rooms, and a 
second observation/ready room area, an accessible ramp to the new 
unisex public restrooms on the lower floor, a public viewing area, and 
a plaza in front of the lifeguard station. The new lifeguard station 
facilities will provide a 270[deg] view of beaches, bluffs, and reefs 
for continued service to the public onshore as well as in the water.
    Sound levels during all phases of the project will not exceed 110 
dB re 20 [micro]Pa at five feet from the sound sources. The 110 dB 
estimate is based on equipment manufacturers' estimates obtained by the 
construction contractor. The City of San Diego utilized the published 
or manufacturer's measurement data based on the planned equipment 
(i.e., a backhoe, dump truck, cement pump, air compressor, electric 
screw guns, jackhammers, concrete saw, chop saw, and hand tools) to be 
utilized on the proposed project site. Operation of the equipment is 
the primary activity within the range of construction of activities 
that is likely to affect marine mammals by potentially exposing them to 
in-air (i.e., airborne or sub-aerial) noise. Generally, harbor seals 
are considered skittish and have the tendency to react or flush into 
the water at low levels of sound and/or movements. While a range of 
behavioral responses can be expected, it is difficult to predict what 
activities might cause noticeable behavioral reactions with Pacific 
harbor seals at this site. During the demolition and construction 
activities in 2013, on occasion harbor seals did alert and/or flush due 
to equipment noises or visual cues while at other times there were no 
reactions to the same stimuli. Children's Pool is a highly disturbed 
haul-out site and rookery, and the harbor seals observed at this 
location are unusually tolerant to the presence of humans, and do not 
respond in the same manner when exposed to stimuli (e.g., laughing, 
clapping, stomping, climbing, snorkeling, swimming, wading, traffic, 
sirens, barking dogs, and road construction) when compared to the 
behavior of other harbor seals in other ``non-urbanized'' areas (Yochem 
and Stewart, 1998; Hanan, 2004; Hanan & Associates, 2011; Hanan, 2005) 
(see https://www.youtube.comwatch?v=4IRUYVTULsg). During the working 
day, the City of San Diego estimates there will be sound source levels 
above 90 dB re 20 [micro]Pa, including 65 days of 100 to 110 dB re 20 
[micro]Pa at the demolition and construction site. The contractor used 
published or manufacturer's measurements to estimate sound levels. On 
average, pinnipeds will be about 30.5 meters (m) (100 feet [ft]) or 
more from the construction site with a potential minimum of about 15.2 
m (50 ft). During 2013, measured sound levels from the demolition 
equipment reaching the

[[Page 8162]]

pinnipeds did not exceed approximately 90 dB at the haul-out area 
closest to the demolition and construction and a peak of about 83 dB re 
20 [micro]Pa at the mean hauling-out distance (30.5 m). The City of San 
Diego used the formula and online calculator on the Web site: https://sengpielaudio.com/calculator-distance.htm and measured distances from 
the sound source to determine the area of potential impacts from in-air 
sound. No studies of ambient sound levels have been conducted at the 
Children's Pool, the City of San Diego intends to measure in-air 
background noise levels in the days immediately prior to, during, and 
after the demolition and construction activities.
    The previous lifeguard station is located on a bluff above 
Children's Pool (32[deg] 50' 50.02'' North, 117[deg] 16'42.8'' West) 
nearby reef and beach areas (see detailed maps and photographs on pages 
30 to 31 of the ``Mitigated Negative Declaration'' in the IHA 
application). The building has deteriorated significantly and must be 
removed. For public service during demolition and construction of the 
new lifeguard station, two temporary towers were placed on nearby 
cliffs and the first temporary tower was removed. The building 
contractor utilized an excavator, backhoe, concrete saw, and 
jackhammers for demolishing the previous structure, and the waste 
materials were loaded into dump trucks to be hauled to an offsite. 
Material will be hauled to a local offsite landfill where it will be 
separated into recycled content and waste. In its place, a new 
lifeguard station is scheduled to be constructed within and adjacent to 
the previous facility. The new lifeguard facility is an optimal 
location to provide lifeguard service to the community. The new three-
story, building will contain beach access level public restrooms and 
showers, lifeguard lockers, and sewage pump room; a second level 
containing two work stations, ready/observation room, kitchenette, 
restroom, and first aid station; and a third ``observation'' level will 
include a single occupancy observation space, radio storage closet, and 
exterior catwalk. Interior stairs will link the floors. The existing 
below grade retaining walls will remain in place and new retaining 
walls will be constructed for a ramp from street level to the lower 
level for emergency vehicle beach access and pedestrian access to the 
lower level restrooms and showers. A 5.6 m (18.5 ft) wall would be 
located along the north end of the lower level. The walls would be 
designed for a minimum design life of 50 years and would not be 
undermined from ongoing coastal erosion. The walls would not be readily 
viewed from Coast Boulevard, the public sidewalks or the surrounding 
community.
    Lower level improvements include new beach access restrooms and 
showers, lifeguard lockers, and a sewage pump room. The plaza level 
plan includes two work stations, a ready/observation room, kitchenette, 
restroom and first aid station. The observation level includes a single 
occupancy observation space, radio storage closet, and exterior 
catwalk. The existing plaza would be reconfigured to provide a 3.1 m 
(10 ft) wide ramp for emergency vehicles to the beach and for 
pedestrians to the lower level accessible restrooms and showers. 
Enhanced paving, seating and viewing space, drinking fountains, adapted 
landscaping and water efficient irrigation is also included. No 
material is expected to enter or be washed into the marine environment 
that may affect water quality, as the City of San Diego has developed 
the U.S. Environmental Protection Agency's National Pollutant Discharge 
Elimination System and the Stormwater Pollution Prevention Plan, 
required for the demolition and construction activities.
    Demolition and construction of the new lifeguard station was 
estimated to take approximately 7 months (148 actual demolition and 
construction days) and be completed by December 15, 2013; however, 
demolition and construction did not start until later than previously 
planned due to the presence of nesting migratory birds. There were 
additional unexpected delays in the demolition due to unforeseen 
underground structures at the site making it impossible to finish the 
project by December 15, 2013. Proposed construction activities will 
generally occur Monday through Friday (no work will occur on holidays) 
during daylight hours only, as stipulated in the ``Mitigated Negative 
Declaration'' and local ordinances. As a modification to the original 
IHA, the City of San Diego has requested that proposed construction 
activities be allowed on weekends (i.e., Saturday and Sunday) to ensure 
completion of the project during 2014. Demolition and construction 
activities are divided into phases:
    (1) Mobilization and temporary facilities;
    (2) Demolition and site clearing;
    (3) Site preparation and utilities;
    (4) Building foundation;
    (5) Building shell;
    (6) Building exterior;
    (7) Building interior;
    (8) Site improvements; and
    (9) Final inspection and demobilization.
    The City of San Diego completed phases 1 to 4 in December 2013. 
Construction of phases 5 to 9 will commence in June 2014, thereby 
necessitating a renewal of the previous IHA.
    Detail summary (phases overlap in time):
    See the notice of the final IHA for the City of San Diego's 
demolition and construction activities that was published in the 
Federal Register on July 8, 2013 (78 FR 40705) for a more detailed 
summary on phases 1 to 4 (i.e., mobilization and temporary facilities, 
demolition and site clearing, site preparation and utilities, and 
building foundation).
    (5) Building shell:
    Pre-cast concrete panel walls, panel walls, rough carpentry and 
roof framing, wall board, cable railing, metal flashing, and roofing.
    Equipment--crane, truck, fork lift, and hand/power tools.
    Timeframe--Approximately 35 days.
    This phase will be completed in 2014 and has a maximum source level 
of 100 dB.
    (6) Building exterior:
    Doors and windows, siding paint, light fixtures, and plumbing 
fixtures.
    Equipment--truck, hand/power tools, and chop saw.
    Timeframe--Approximately 4 weeks.
    This phase will be completed in 2014 and has a maximum source level 
of 100 dB.
    (7) Building interiors:
    Walls, sewage lift station, rough and finish mechanical electrical 
plumbing structural (MEPS), wall board, door frames, doors and paint.
    Equipment--truck, hand/power tools, and chop saw.
    Timeframe--Approximately 37 days.
    This phase will be completed in 2014 and has a maximum source level 
of 100 dB.
    (8) Site improvements:
    Modify storm drain, concrete seat walls, curbs, and planters, fine 
grade, irrigation, hardscape, landscape, hand rails, plaques, and 
benches.
    Equipment--backhoe, truck, hand/power tools, concrete pump/truck, 
and fork lift.
    Timeframe--Approximately 37 days.
    This phase will be completed in 2014 and has a maximum source level 
of 110 dB.
    (9) Final inspection, demobilization:
    System testing, remove construction equipment, inspection, and 
corrections.
    Equipment--truck, and hand/power tools.
    Timeframe--Approximately 41 days.

[[Page 8163]]

    This phase will be completed in 2014 and has a maximum source level 
of 100 dB.
    The exact dates of the proposed activities depend on logistics and 
scheduling.
    Additional details regarding the proposed construction activities 
of the Children's Pool Lifeguard Station can be found in the City of 
San Diego's IHA application. The IHA application can also be found 
online at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

Proposed Dates, Duration, and Specific Geographic Region

    The La Jolla Children's Pool Lifeguard Station is located at 827\1/
2\ Coast Boulevard, La Jolla, CA 92037 (32[deg]50' 50.02'' North, 
117[deg]16'42.8'' West. Because the City of San Diego and NMFS are 
already requiring a moratorium on all proposed construction activities 
during harbor seal pupping and weaning (i.e., December 15th to May 
30th; see page 5 of the Negative Declaration in the IHA application), 
work on this project can only be performed between June 1st and 
December 14th of any year. The City of San Diego is planning to begin/
resume the proposed project at the Children's Pool in La Jolla, CA on 
June 1, 2014, (see page 30 to 31 of the Negative Declaration in the IHA 
application) with completion of the new lifeguard station to be 
completed by December 15, 2014. The IHA may extend through June of 2015 
to finish the proposed construction activities, if needed. The 
locations and distances (in ft) from the demolition/construction site 
to the Children's Pool haul-out area, breakwater ledge/rocks haul-out 
area, reef haul-out area, and Casa Beach haul-out area can be found in 
the City of San Diego's IHA application.

Description of Marine Mammals in the Specified Geographic Area of the 
Proposed Specified Activity

    Three species of pinnipeds are known to or could occur in the 
Children's Pool proposed action area and off the Pacific coastline (see 
Table 1 below). Pacific harbor seals, California sea lions, and 
northern elephant seals are the three species of marine mammals that 
occur and are likely to be found within the immediate vicinity of the 
activity area; thus, they are likely to be exposed to effects of the 
proposed specified activities. NMFS and the City of San Diego do not 
expect incidental take of other marine mammal species from the proposed 
specified activities. A variety of other marine mammals have on 
occasion been reported from the coastal waters of southern California. 
These include gray whales, killer whales, bottlenose dolphins, Steller 
sea lions, northern fur seals, and Guadalupe fur seals. However, none 
of these species have been reported to occur in the proposed action 
area. Table 1 below identifies the cetacean and pinnipeds species, 
their habitat, and conservation status in the nearshore area of the 
general region of the proposed project area.

   Table 1--The Habitat, Abundance, and Conservation Status of Marine Mammals Inhabiting the General Region of the Proposed Action Area in the Pacific
                                                       Ocean Off the Southern Coast of California
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                                                                 Best population
              Species                        Habitat         estimate  (Minimum)\1\         ESA \2\                MMPA \3\           Population trend
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Mysticetes
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Gray whale (Eschrichtius robustus).  Coastal and shelf.....  19,126 (18,107).......  DL--Eastern Pacific    NC--Eastern North      Increasing over past
                                                                                      stock.                 Pacific stock.         several decades.
                                                                                     EN--Western Pacific    D--Western North
                                                                                      stock.                 Pacific stock.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Odontocetes
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Killer whale (Orcinus orca)........  Widely distributed....  354 (354)--West Coast   NL...................  NC...................  Increasing--West
                                                              Transient stock.       EN--Southern resident  D--Southern Resident    Coast Transient
                                                                                      population.            and AT1 Transient      stock.
                                                                                                             populations.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose dolphin (Tursiops         Offshore, inshore,      323 (290)--California   NL...................  NC...................  Stable.
 truncatus).                          coastal, estuaries.     Coastal stock.
Long-beaked common dolphin           Inshore...............  107,016 (76,224)--      NL...................  NC...................  Increasing.
 (Delphinus capensis).                                        California stock.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        Pinnipeds
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Pacific harbor seal (Phoca vitulina  Coastal...............  30,196 (26,667)--       NL...................  NC...................  Increased in
 richardii).                                                  California stock.                                                     California 1981 to
                                                                                                                                    2004.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Northern elephant seal (Mirounga     Coastal, pelagic when   124,000 (74,913)--      NL...................  NC...................  Increasing through
 angustirostris).                     not migrating.          California breeding                                                   2005, now stable.
                                                              stock.
California sea lion (Zalophus        Coastal, shelf........  296,750 (153,337)--     NL...................  NC...................  Increasing.
 californianus).                                              U.S. stock.
Steller sea lion (Eumetopias         Coastal, shelf........  72,223 (52,847)--       DL--Eastern U.S.       D....................  Overall increasing,
 jubatus).                                                    Eastern U.S. stock.     stock.                                        decreasing in
                                                                                     EN--Western U.S.                               California.
                                                                                      stock.
Northern fur seal (Callorhinus       Pelagic, offshore.....  12,844 (6,722)--        NL...................  NC--California stock.  Increasing.
 ursinus).                                                    California stock.

[[Page 8164]]

 
Guadalupe fur seal (Arctocephalus    Coastal, shelf........  7,408 (3,028)--Mexico   T....................  D....................  Increasing.
 townsendi).                                                  to California.
--------------------------------------------------------------------------------------------------------------------------------------------------------
NA = Not available or not assessed.
\1\ NMFS Marine Mammal Stock Assessment Reports
\2\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, DL = Delisted, and NL = Not listed.
\3\ U.S. Marine Mammal Protection Act: D = Depleted, S = Strategic, and NC = Not classified.

    The rocks and beaches at or near the Children's Pool in La Jolla, 
CA, are almost exclusively Pacific harbor seal hauling-out sites. On 
infrequent occasions, one or two California sea lions or a single 
juvenile northern elephant seal, have been observed on the sand or 
rocks at or near the Children's Pool (i.e., breakwater ledge/rocks 
haul-out area, reef haul-out area, and Casa Beach haul-out area). These 
sites are not usual haul-out locations for California sea lions and/or 
northern elephant seals. The City of San Diego commissioned two studies 
of harbor seal abundance trends at the Children's Pool. Both studies 
reported that appearances of California sea lions and northern elephant 
seals are infrequent, but not rare at Children's Pool (Yochem and 
Stewart, 1998; Hanan, 2004; Hanan & Associates, 2011). During 2013, the 
City of San Diego observed one juvenile California sea lion and no 
northern elephant seals at the Children's Pool.

Pacific Harbor Seal

    Harbor seals are widely distributed in the North Atlantic and North 
Pacific. Two subspecies exist in the Pacific Ocean: P. v. stejnegeri in 
the western North Pacific near Japan, and P. v. richardii in the 
eastern North Pacific. The subspecies in the eastern North Pacific 
Ocean inhabits near-shore coastal and estuarine areas from Baja 
California, Mexico, to the Pribilof Islands in Alaska. These seals do 
not make extensive pelagic migrations, but do travel 300 to 500 
kilometers (km) (162 to 270 nautical miles [nmi]) on occasion to find 
food or suitable breeding areas (Herder, 1986; Harvey and Goley, 2011). 
Previous assessments of the status of harbor seals have recognized 
three stocks along the west coast of the continental U.S.: (1) 
California, (2) Oregon and Washington outer coast waters, and (3) 
inland waters of Washington. An unknown number of harbor seals also 
occur along the west coast of Baja California, at least as far south as 
Isla Asuncion, which is about 100 miles south of Punta Eugenia. Animals 
along Baja California are not considered to be a part of the California 
stock because it is not known if there is any demographically 
significant movement of harbor seals between California and Mexico and 
there is no international agreement for joint management of harbor 
seals. Harbor seal presence at haul-out sites is seasonal with peaks in 
abundance during their pupping and molting periods. Pupping and molting 
periods are first observed to the south and progress northward up the 
coast with time (e.g., January to May near San Diego, April to June in 
Oregon and Washington) (Jeffries, 1984; Jeffries, 1985; Huber et al., 
2001; Hanan, 2004; Hanan & Associates, 2011). In California, 
approximately 400 to 600 harbor seal haul-out sites are distributed 
along the mainland coast and on offshore islands, including intertidal 
sandbars and ledges, rocky shores and islets, and beaches (Harvey et 
al., 1995; Hanan, 1996; Lowry et al., 2008). Of these haul-out sites, 
only 14 locations are rookeries (2 locations have multiple sites, for a 
total of 17 sites) on or near the mainland of California. Preferred 
haul-out sites are those that are protected from the wind and waves, 
and allow access to deep water for foraging (Perrin et al., 2008). 
Harbor seals are one of the most common and frequently observed marine 
mammals along the coastal environment.
    The population of harbor seals has grown off the U.S. west coast 
and has led to new haul-out sites being used in California (Hanan, 
1996). Pacific harbor seals haul-out year-round on nearby beaches and 
rocks (i.e., breakwater ledge/rocks haul-out area, reef haul-out area, 
and Casa Beach haul-out area) below the lifeguard tower at Children's 
Pool. According to Yochem (2005), the Children's Pool beach site is 
used by harbor seals at all hours of the day and at all tides with the 
exception of occasional high tide/high swell events in which the entire 
beach is awash. Harbor seals have been observed hauling-out and 
documented giving birth at the Children's Pool since the 1990's (Yochem 
and Stewart, 1998; Hanan & Associates, 2004). It is the only rookery in 
San Diego County and the only mainland rookery on the U.S. west coast 
between the border of Mexico and Point Mugu in Ventura County, CA 
(321.9 km [200 miles]). Also, it is one of the three known haul-out 
sites for this species in San Diego County. They haul-out, give birth 
to pups, nurse, and molt their pelage on the beach and often forage for 
food and mate in nearby areas. Harbor seal numbers have increased since 
1979 and seals are documented to give birth on these beaches during 
December through May (Hanan, 2004; Hanan & Associates, 2011). The 
official start to pupping season is December 15th. Females in an 
advanced stage of pregnancy begin to show up on the Children's Pool 
beach by late October to early November. Several studies have 
identified harbor seal behavior and estimated harbor seal numbers 
including patterns of daily and seasonal area use (Yochem and Stewart, 
1998; Hanan & Associates, 2011; Linder, 2011). Males, females, and pups 
(in season) of all ages and stages of development are observed at the 
Children's Pool and adjacent areas.
    In southern California, a considerable amount of information is 
known about the movements and ecology of harbor seals, but population 
structure in the region is not as well known (Stewart and Yochem, 1994, 
2000; Keper et al., 2005; Hanan & Associates, 2011). Linder (2011) 
suggests that this population moves along the California coast and the 
beach at Children's Pool is part of a ``regional network of 
interconnected'' haul-out and pupping sites. Harbor seals often haul-
out in protected bays, inlets, and beaches (Reeves et al., 1992). At 
and near the Children's Pool, harbor seals haul-out on the sand, rocks, 
and breakwater base in numbers of 0 to 15

[[Page 8165]]

harbor seals to a maximum of about 150 to 250 harbor seals depending on 
the time of day, season, and weather conditions (Hanan, 2004, Hanan & 
Associates, 2011; Linder, 2011). Because space is limited behind the 
breakwater at the Children's Pool, Linder (2011) predicted that it is 
unlikely that numbers would exceed 250 harbor seals. Based on 
monitoring from a camera, Western Alliance for Nature (WAN) reports 
that during the month of May 2013, at any given time, up to 302 harbor 
seals were documented resting on the Children's Pool beach with 
additional harbor seals on the rocks and in the water (Wan, personal 
communication). Almost every day, except for weekends, the number of 
harbor seals on the beach was over 250 individuals. During the months 
of September 2012 to January 2013, the average number of harbor seals 
on the beach during hours prior to people on the beach or with people 
behind the rope varied from 83 to 120 animals. During this same period 
when there were people on the beach with or without the rope, but where 
people were across the rope, the average varied between 7 to 27, which 
is significantly less. The weather (i.e., wind and/or rain) as well as 
the proximity of humans to the beach likely affect the presence of 
harbor seals on the beach. These animals have been observed in this 
area moving to/from the Children's Pool, exchanging with the rocky reef 
directly west of and adjacent to the breakwater and with Seal Rock, 
which is about 150 m (492 ft) west of the Children's Pool. Harbor seals 
have also been reported on the sandy beach just southwest of the 
Children's Pool. At low tide, additional space for hauling-out is 
available on the rocky reef areas outside the retaining wall and on 
beaches immediately southward. Haul-out times vary by time of year, 
from less than an hour to many hours. There have been no foraging 
studies at this site, but harbor seals have been observed in nearshore 
waters and kelp beds nearby, including La Jolla Cove.
    Radio-tagging and photographic studies have revealed that only a 
portion of seals utilizing a hauling-out site are present at any 
specific moment or day (Hanan, 1996, 2005; Gilbert et al., 2005; Harvey 
and Goley, 2011; and Linder, 2011). These radio-tagging studies 
indicate that harbor seals in Santa Barbara County haul-out about 70 to 
90% of the days annually (Hanan, 1996), the City of San Diego expects 
harbor seals to behave similarly at the Children's Pool. Tagged and 
branded harbor seals from other haul-out sites have been observed by 
Dr. Hanan at the Children's Pool. Harbor seals have been observed with 
red-stained heads and coats, which are typical of some harbor seals in 
San Francisco Bay, indicating that seals tagged at other locations and 
haul-out sites do visit the Children's Pool. A few seals have been 
tagged at the Children's Pool and there are no reports of these tagged 
animals at other sites (probably because of very low re-sighting 
efforts and a small sample size [10 individuals radio-tagged]), which 
may indicate a degree of site-fidelity (Yochem and Stewart, 1998). 
These studies further indicate that seals are constantly moving along 
the coast including to/from the offshore islands and that there may be 
as many as 600 individual harbor seals using Children's Pool during a 
year, but certainly not all at one time.
    The City of San Diego has fitted a polynomial curve to the number 
of expected harbor seals hauling-out at the Children's Pool by month 
(see Figure 1 of the IHA application and Figure 2 below) based on 
counts at the Children's Pool by Hanan (2004) and Hanan & Associates 
(2011), Yochem and Stewart (1998), and the Children's Pool docents 
(Hanan, 2004). A three percent annual growth rate of the population was 
applied to Yochem and Stewart (1998) counts to normalize them to Hanan 
& Associates and docent counts in 2003 to 2004.
    A complete count of all harbor seals in California is impossible 
because some are always away from the haul-out sites. A complete pup 
count (as is done for other pinnipeds in California) is also not 
possible because harbor seals are precocial, with pups entering the 
water almost immediately after birth. Population size is estimated by 
counting the number of seals ashore during the peak haul-out period 
(May to July) and by multiplying this count by a correction factor 
equal to the inverse of the estimated fraction of seals on land. Based 
on the most recent harbor seal counts (2009) and including a revised 
correction factor, the estimated population of harbor seals in 
California is 30,196 individuals (NMFS, 2011), with an estimated 
minimum population of 26,667 for the California stock of harbor seals. 
Counts of harbor seals in California increased from 1981 to 2004. The 
harbor seal is not listed under the ESA and the California stock is not 
considered depleted or strategic under the MMPA (Carretta et al., 
2010).

California Sea Lion

    The California sea lion is now considered to be a full species, 
separated from the Galapagos sea lion (Zalophus wollebaeki) and the 
extinct Japanese sea lion (Zalophus japonicus) (Brunner, 2003; Wolf et 
al., 2007; Schramm et al., 2009). They are found from southern Mexico 
to southwestern Canada. The breeding areas of the California sea lion 
are on islands located in southern California, western Baja California, 
and the Gulf of California. Genetic analysis of California sea lions 
identified five genetically distinct geographic populations: (1) 
Pacific Temperate, (2) Pacific Subtropical, (3) Southern Gulf of 
California, (4) Central Gulf of California, and (5) Northern Gulf of 
California (Schramm et al., 2009). In that study, the Pacific Temperate 
population included rookeries within U.S. waters and the Coronados 
Islands just south of U.S./Mexico border. Animals from the Pacific 
Temperate population range north into Canadian waters, and movement of 
animals between U.S. waters and Baja California waters has been 
documented, though the distance between the major U.S. and Baja 
California rookeries is at least 740.8 km (400 nmi). Males from western 
Baja California rookeries may spend most of the year in the U.S.
    The entire population cannot be counted because all age and sex 
classes are never ashore at the same time. In lieu of counting all sea 
lions, pups are counted during the breeding season (because this is the 
only age class that is ashore in its entirety), and the numbers of 
births is estimated from the pup count. The size of the population is 
then estimated from the number of births and the proportion of pups in 
the population. Censuses are conducted in July after all pups have been 
born. There are no rookeries at or near the Children's Pool. Population 
estimates for the U.S. stock of California sea lions, range from a 
minimum of 153,337 to an average estimate of 296,750 animals. They are 
considered to be at carrying capacity of the environment. The 
California sea lion is not listed under the ESA and the U.S. stock is 
not considered depleted or strategic under the MMPA.

Northern Elephant Seal

    Northern elephant seals breed and give birth in California (U.S.) 
and Baja California (Mexico), primarily on offshore islands (Stewart et 
al., 1994), from December to March (Stewart and Huber, 1993). Males 
feed near the eastern Aleutian Islands and in the Gulf of Alaska, and 
females feed further south, south of 45[deg] North (Stewart and Huber, 
1993; Le Boeuf et al., 1993). Adults return to land between March and 
August to molt, with males returning later than females. Adults

[[Page 8166]]

return to their feeding areas again between their spring/summer molting 
and their winter breeding seasons.
    Populations of northern elephant seals in the U.S. and Mexico were 
all originally derived from a few tens or a few hundreds of individuals 
surviving in Mexico after being nearly hunted to extinction (Stewart et 
al., 1994). Given the very recent derivation of most rookeries, no 
genetic differentiation would be expected. Although movement and 
genetic exchange continues between rookeries when they start breeding 
(Huber et al., 1991). The California breeding population is now 
demographically isolated from the Baja California population. The 
California breeding population is considered in NMFS stock assessment 
report to be a separate stock.
    A complete population count of elephant seals is not possible 
because all age classes are not ashore at the same time. Elephant seal 
population size is typically estimated by counting the number of pups 
produced and multiplying by the inverse of the expected ratio of pups 
to total animals (McCann, 1985). Based on the estimated 35,549 pups 
born in California in 2005 and an appropriate multiplier for a rapidly 
growing population, the California stock was approximately 124,000 in 
2005. The minimum population size for northern elephant seals can be 
estimated very conservatively as 74,913, which is equal to twice the 
observed pup count (to account for the pups and their mothers), plus 
3,815 males and juveniles counted at the Channel Islands and central 
California sites in 2005 (Lowry, NMFS unpublished data). Based on 
trends in pup counts, northern elephant seal colonies were continuing 
to grow in California through 2005, but appear to be stable or slowly 
decreasing in Mexico (Stewart et al., 1994). Northern elephant seals 
are not listed under the ESA and are not considered as depleted or a 
strategic stock under the MMPA.
    Further information on the biology and local distribution of these 
marine mammal species and others in the region can be found in the City 
of San Diego's IHA application, which is available upon request (see 
ADDRESSES), and the NMFS Marine Mammal Stock Assessment Reports, which 
are available online at: https://www.nmfs.noaa.gov/pr/sars/.

Potential Effects on Marine Mammals

    Richardson et al. (1995) has documented changes in behavior and 
auditory threshold shifts in response to in-air and underwater noise. 
Behavioral responses to loud noises could include startling, alertness, 
changes in physical movement, temporary flushing from the beach, site 
abandonment, and pup abandonment (Allen, 1991; Kastak and Schusterman, 
1996; Kastak et al., 1999; Hanan & Associates, 2011). NMFS and the City 
of San Diego anticipate short-term behavioral impacts on pinnipeds at 
the Children's Pool to include startling, alertness, changes in 
physical movement, temporary flushing from the beach, and general 
diminished use of the haul-out site during the proposed construction 
activities (Hanan & Associates, 2011).
    The City of San Diego requests authorization for Level B harassment 
of three species of marine mammals (i.e., Pacific harbor seals, 
California sea lions, and northern elephant seals) incidental to the 
use of equipment and its propagation of in-air noise from various 
acoustic mechanisms associated with the proposed construction 
activities of the Children's Pool Lifeguard Station at La Jolla, CA 
discussed above. Several species of marine mammals may potentially 
occur in the specified geographic area and thus may be affected by the 
proposed action. Pacific harbor seals are the most common species, the 
California sea lion and northern elephant seal are observed 
occasionally, and thus considered likely to be exposed to sound 
associated with the proposed construction activities. Behavioral 
disturbance may potentially occur as well incidental to the visual 
presence of humans and proposed construction activities; however, 
pinnipeds at this site have likely adapted or become acclimated to 
human presence at this site. These ``urbanized'' harbor seals do not 
exhibit sensitivity at a level similar to that noted in harbor seals in 
some other regions affected by human disturbance (Allen et al., 1984; 
Suryan and Harvey, 1999; Henry and Hammil, 2001; Johnson and Acevedo-
Gutierrez, 2007; Jansen et al., 2006; Hanan & Associates, 2011). 
Lifeguards at the Children's Pool and nearby areas estimate that an 
average of 1,556,184 people per year or 129,682 per month visit the 
site from 2010 to 2012. The vast majority of these visitors have come 
to the Children's Pool specifically to watch the harbor seals. A 
maximum of 15 personnel, at any one time, are expected to be part of 
the construction activities.
    Current NMFS practice, regarding exposure of marine mammals to 
high-level in-air sounds, as a threshold for potential Level B 
harassment, is at or above 90 dB re 20 [micro]Pa for harbor seals and 
at or above 100 dB re 20 [micro]Pa for all other pinniped species 
(Lawson et al., 2002; Southall et al., 2007). The acoustic mechanisms 
involved entail in-air non-impulsive noise caused by the proposed 
construction activities. Expected in-air noise levels are anticipated 
to result in elevated sound intensities near the proposed construction 
activities. No other mechanisms or sound sources are expected to affect 
marine mammal use of the area. The other operations and activities 
associated with the proposed construction activities would not affect 
the haul-out and would not entail noise, that is materially different 
from normal operations at the lifeguard station, to which the animals 
may be somewhat habituated already.
    Since no proposed construction activities will be performed during 
the pupping and weaning season (i.e., mid-December through mid-May), 
there will be no impacts on birthing rates or pup survivorship at the 
Children's Pool. There will be no in-water construction activities in 
or near the water so pinniped activities in the water should not be 
affected. Additionally, pinnipeds utilizing the Children's Pool beach 
as a haul-out site are a very small portion of the species and/or stock 
populations and any impacts would have little effect at the species 
and/or stock population levels.
    As noted above, current NMFS practice, regarding exposure of marine 
mammals to high-level in-air sounds, as a potential threshold for Level 
B harassment, is at or above 90 dB re 20 [micro]Pa for harbor seals and 
at or above 100 dB re 20 [micro]Pa for all other pinniped species. 
Pinnipeds at Children's Pool are likely already exposed to and 
habituated to loud noise and human presence, and thus may have areas of 
effect comparable to the radius of effect calculated for noise from the 
proposed construction activities. Behavioral considerations suggest 
that the pinnipeds would be able to determine that a noise source does 
not constitute a threat if it is more than a certain distance away, and 
the sound levels involved are not high enough to result in injury 
(Level A harassment). Nonetheless, these data suggest that proposed 
construction activities may affect pinniped behavior throughout the 
Children's Pool area, i.e., within approximately a few hundred feet of 
the activity. The nature of that effect is unpredictable, but logical 
responses on the part of the pinnipeds include tolerance (noise levels 
would likely not be loud enough to induce temporary threshold shift in 
harbor seals), or avoidance by using haul-outs or by foraging outside 
of the immediate Children's Pool area.
    In-Air Noise--The principal source of in-air noise would be from a 
backhoe,

[[Page 8167]]

dump truck, air compressor, electric screw guns, jackhammer, concrete 
saw, and chop saws used for the proposed construction activities. 
Background noise levels near the Children's Pool are likely already 
elevated due to normal activities (e.g., human presence and traffic) 
and the ocean. There have been no studies conducted at the Children's 
Pool regarding background noise in the area, but the City of San Diego 
will conduct pre- and post-acoustic monitoring to determine ambient 
sound levels as well as noise-levels generated from the construction 
activities. Marine mammals at Children's Pool haul-outs are presumably 
tolerant and acclimated to the daily coming and going of humans, 
automobiles, and to other existing activities at the proposed action 
area. These proposed activities may occur at any time of the day (i.e., 
during daylight between 7:00 a.m. and 7:00 p.m.) for periods of up to 
several hours at a time.
    Hanan & Associates (2004) noted that harbor seals hauled-out at the 
Children's Pool are exposed to the constant presence of humans (on the 
beach, sea wall, lifeguard tower, and sidewalks). There are so many 
human visitors to the Children's Pool site at all hours of the day and 
night, season, and weather that human scent and visual presence are 
generally not considered a concern (Hanan, 2004; Hanan & Associates, 
2011). At this site, the Pacific harbor seals are most disturbed when 
people get very close to them on the beach (i.e., probably less than 2 
to 3 m [6.6 to 9.8 ft]). However, the City of San Diego requested 
incidental take coverage in case pinnipeds alert and/or flush into the 
water due to the novel presence, visual stimuli, and/or sounds of 
construction equipment not previously experienced by pinnipeds at this 
location. The contractors will not directly approach the Pacific harbor 
seals during the construction activities.
    At the individual level, a newly arrived pinniped (moved in from 
another area) may not have acclimated to humans and noise as pinnipeds 
that have been on site for awhile. These recent arrivals may alert to 
these stimuli, perhaps flushing into the water. However, after a few 
days of using the beach at Children's Pool, the City of San Diego would 
expect the pinnipeds to acclimate and not react to humans (unless close 
to them) or noises at the proposed construction activities site. 
Observations have shown that loud and startling noises have 
consistently caused some of the harbor seals at the site to flush into 
the water, and generally the harbor seals returned to the haul-out site 
within a short time (Hanan & Associates, 2002; Yochem, 2004; Hanan & 
Associates, 2011).
    Although harbor seals could also be affected by in-air noise and 
activity associated with proposed construction at the lifeguard 
station, harbor seals at Children's Pool haul-outs are presumably 
acclimated to human activity to some extent due to the daily coming and 
going (i.e., presence) of humans, and to other existing activities in 
the area. These proposed activities may occur during daylight hours and 
may produce noise for periods of up to several hours at a time. The 
operation of loud equipment are above and outside of the range of 
normal activity at the Children's Pool and have the potential to cause 
seals to leave a haul-out at the Children's Pool. This would constitute 
Level B harassment (behavioral). In view of the relatively small area 
that would be affected by elevated in-air noise and the proximity to 
the haul-out sites, it appears probable that some harbor seals could 
show a behavioral response, despite their tolerance to current levels 
of human-generated noise; incidental take by this mechanism may occur 
during the proposed construction activities.
    Harbor seal presence in the activity area is perennial, with daily 
presence at a nearby haul-out (Seal Rock is several hundred yards east 
of the Children's Pool site) during the months when the activity would 
occur. The potentially affected harbor seals include adults of both 
sexes. The harbor seals at Children's Pool may be non-migratory 
residents, exhibiting site fidelity at the haul-out sites. Harbor seals 
often stay within a 50 km (31.1 miles) range of haul-outs, but young 
individuals and adult males have lower site fidelity and dispersal 
rates. Adult females are known to mate and give birth in the area where 
they were born (i.e., high degree of natal philopatry) (Harkonen and 
Harding, 2001; Linder, 2011). Cannon (2009) documented individuals 
moving between haul-out sites at Las Islas Coronados, Mexico and the 
Children's Pool, which are located approximately 50 km apart (Linder, 
2011). However, it is possible that at least some of the harbor seals 
using this site come from moderate distances, as they are known to 
travel distances up to approximately 550 km (297 nmi) for foraging or 
mating purposes (Herder, 1986; Linder, 2011; Hanan & Associates, 2011). 
A study by Greenslade (2002) on diet and foraging ecology suggests that 
the harbor seals at Children's Pool travel some distance away from the 
haul-out site to feed, as the main prey species in their diet (i.e., 
Pacific sanddab and Pacific hake) do not occur in the kelp forest near 
the La Jolla area (Linder, 2011).
    Although harbor seals are tolerant to the presence of humans and 
other visible and non-visible disturbances, they may display a range of 
behaviors when exposed to noise from proposed construction activities. 
Using the webcam, WAN has documented that when major flushing events 
occur it can take a day or two for them to return in the same numbers. 
Videos of these events can be found online at: https://www.youtube.com/watch?v=UWH3z2iP1Ms&Feature=youtu.be and https://www.youtube.com/watch?v=VRQyn6IOUxY.
    It is likely that many harbor seals in the ``urbanized'' population 
would be affected more than once over the course of the proposed 
construction period; therefore, it is possible that some measure of 
adaptation or acclimatization would occur on the part of the harbor 
seals, whereby they would tolerate elevated noise levels and/or utilize 
haul-outs relatively distant from the proposed construction activities. 
This strategy is possible, but it is difficult to predict whether the 
harbor seals would show such a response. Project scheduling avoids the 
most sensitive breeding phases of harbor seals. Proposed project 
activities producing in-air noise would commence in June, after pupping 
season and when pups have been weaned. Proposed project activities 
producing in-air noise are scheduled to terminate by the middle of 
December, which is before adult female harbor seals begin pupping. 
Visibly pregnant females may begin using this site in November, and 
perhaps as early as October.
    Effects on California Sea Lions and Northern Elephant Seals--
California sea lions and northern elephant seals, although abundant in 
northern California waters, have seldom been recorded at the Children's 
Pool. Their low abundance in the area may be due to the presence of a 
large and active harbor seal population there, which likely competes 
with the California sea lions and northern elephant seals for foraging 
resources. Any California sea lions that visit the proposed action area 
during construction activities would be subject to the same type of 
impacts described above for harbor seals. There is a possibility of 
behavioral effects related to project acoustic impacts, in the event of 
California sea lion and northern elephant seal presence in the activity 
area. California sea lions and northern elephant seals have been seen 
in the proposed activity area, albeit infrequently, and there are no 
quantitative estimates of the frequency

[[Page 8168]]

of their occurrence. Assuming that they are present, it is possible 
California sea lions and northern elephant seals might be subject to 
behavioral harassment.
    The potential effects to marine mammals described in this section 
of the document generally do not take into consideration the monitoring 
and mitigation measures described later in this document (see the 
``Proposed Mitigation'' and ``Proposed Monitoring and Reporting'' 
sections) which, as noted are designed to effect the least practicable 
adverse impact on affected marine mammal species or stocks.

Anticipated Effects on Marine Mammal Habitat

    All proposed construction activities are beyond or outside the 
habitat areas where harbor seals and other pinnipeds are found. Visual 
barriers would be erected to shield construction activities from the 
visual perception and potentially dampen acoustic effects on pinnipeds. 
Because the public occasionally harasses the harbor seals with various 
activities, the NMFS-qualified PSO monitoring the site will make 
observations and attempt to distinguish and attribute any observed 
harassment to the public or to the proposed construction activities and 
give all details in the observation report. If any short-term, 
temporary impacts to habitat due to sounds or visual presence of 
equipment and workers did occur, the City of San Diego would expect 
pinniped behavior to return to pre-construction conditions soon after 
the activities are completed which is anticipated to occur before the 
next pupping season (Hanan & Associates, 2011). This site is already 
very disturbed by member of the public who come to the area during the 
day and night to view the pinnipeds. The City of San Diego and NMFS do 
not project any loss or modification of physical habitat for these 
species. Any potential temporary loss or modification of habitat due to 
in-air noise or visual presence of equipment and workers during the 
proposed activities is expected by the City of San Diego and NMFS to be 
quickly restored after proposed construction activities end and all 
equipment and barriers are removed.
    The anticipated adverse impacts upon habitat consist of temporary 
changes to the in-air acoustic environment, as detailed in the IHA 
application. These changes are minor, temporary, and of limited 
duration to the period of proposed construction activities. No aspect 
of the project is anticipated to have any permanent effect on the 
location of pinniped haul-outs in the area, and no permanent change in 
seal or sea lion use of haul-outs and related habitat features is 
anticipated to occur as a result of the project (Hanan & Associates, 
2011). The temporary impacts on the acoustic environment are not 
expected to have any permanent effects on the species or stock 
populations of marine mammals occurring at the Children's Pool. The 
area of habitat affected is small and the effects are temporary, thus 
there is no reason to expect any significant reduction in habitat 
available for foraging and other habitat uses.
    NMFS anticipates that the proposed action will result in no impacts 
to marine mammal habitat beyond rendering the areas immediately around 
the Children's Pool less desirable during construction activities of 
the Children's Pool Lifeguard Station as the impacts will be localized.

Proposed Mitigation

    Any Incidental Take Authorization (ITA) issued under section 
101(a)(5)(D) of the MMPA, must prescribe, where applicable, 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 City of San Diego has established the Children's Pool as a 
shared beach for pinnipeds and people. In the past, during the pupping 
season, a rope was placed along the upper part of the beach with 
signage to inform and designate how close people can come to the haul-
out area and the pinnipeds. The timeframe for the rope has been 
extended so that it is now present year-round. The proposed 
construction activities are planned to occur outside the harbor seal 
pupping and weaning periods. Visual and acoustic barriers were 
constructed in 2013. The visual and acoustic barriers were constructed 
of plywood, 1.2 to 2.4 m (4 to 8 ft) tall stood on end and held up by 
wood posts. The barriers were placed at the site with input from NMFS 
Southwest Regional Office (SWRO) personnel so that they will hide as 
advantageously as possible the proposed construction activities that 
may be seen by pinnipeds. The barriers appear to dampen the acoustic 
sound sources, but do not prevent sound from permeating the 
environment. The barriers also appear to hide and reduce visual cues 
that may stimulate behavioral reactions from the pinnipeds on the beach 
below. As the site is a beach with construction along the cliff and on 
flat areas above the cliff, a complete barrier cannot be constructed to 
hide all proposed construction activities for the project. Once the 
walls of the lifeguard station's building are in place, much of the 
proposed construction activities will take place above the Children's 
Pool beach (i.e., out of sight) as well as inside the building (i.e., a 
visual and partial sound barrier). There will be no activities in the 
ocean or closer to the water's edge and since harbor seals mate 
underwater in the ocean, there will be no impacts on mating activities. 
California sea lions and northern elephant seals are such infrequent 
users of this area and their rookeries are so far away (at least 104.6 
km [65 miles] at offshore islands) that there will be no adverse impact 
on these species.
    As part of the public comment process for the issuance of the 
previous 2013 IHA, NMFS modified several of the monitoring and 
mitigation measures included in the proposed IHA (78 FR 25958, May 3, 
2013) for practicability reasons, as well as included several 
additional measures in the final IHA (78 FR 40705, July 8, 2013). These 
include changing the pupping season from December 15th to May 15th and 
prohibiting construction activities during this time; extending 
construction activities from 7:00 a.m. to 7:00 p.m. to help assure that 
more work is completed during the 2013 construction window; continuing 
monitoring for 60 days following the end of construction activities; 
and triggering a shut-down of construction activities in the unexpected 
event of abandonment of the Children's Pool site. The mitigation 
measure on scheduling the heaviest construction activities (with the 
highest sound levels) during the annual period of lowest haul-out 
occurrence (October to November) was removed as it was included in the 
City of San Diego's Mitigated Negative Declaration when it was 
anticipated that the City of San Diego would obtain an IHA in the 
summer of 2012 and begin demolition and construction activities in the 
fall of 2012. This is no longer practicable due to logistics, 
scheduling and to allow the planned activities to be completed before 
the next pupping season.
    The activities proposed by the applicant includes a variety of 
measures calculated to minimize potential impacts on marine mammals, 
including:
     Construction shall be prohibited during the Pacific harbor 
seal pupping season (December 15th to May 15th) and for an additional 
four weeks to accommodate lactation and weaning of late season pups. 
Thus, construction

[[Page 8169]]

shall be prohibited from December 15th to June 1st.
     Construction activities shall be scheduled, to the maximum 
extent practicable, during the daily period of lowest haul-out 
occurrence, from approximately 8:30 a.m. to 3:30 p.m.; however, 
construction activities may be extended from 7:00 a.m. to 7:00 p.m. to 
help assure that the project can be completed during the 2014 
construction window. Harbor seals typically have the highest daily or 
hourly haul-out period during the afternoon from 3:00 p.m. to 6:00 p.m.
     A visual and acoustic barrier will be erected and 
maintained for the duration of the project to shield construction 
activities from beach view. The temporary barrier shall consist of \1/
2\ to \3/4\ inch (1.3 to 1.9 centimeters [cm]) plywood constructed 1.8 
to 2.4 m (6 to 8 ft) high depending on the location.
     Use of trained PSOs to detect, document, and minimize 
impacts (i.e., possible shut-down of noise-generating operations 
[turning off the equipment so that in-air sounds associated with 
construction no longer exceed levels that are potentially harmful to 
marine mammals]) to marine mammals.

Timing Constraints for In-Air Noise

    To minimize in-air noise impacts on marine mammals, construction 
activities shall be limited to the period when the species of concern 
will be least likely to be in the project area. The construction window 
for construction activities shall be from June 1 to December 15, 2014. 
The IHA may extend through June 1 through June 27, 2015 to finish the 
proposed construction activities if needed. Avoiding periods when the 
highest number of marine mammal individuals are in the action area is 
another mitigation measure to protect marine mammals from the proposed 
construction activities.

Abandonment

    After the first two months of monitoring during construction 
activities, the City of San Diego will take the mean number of observed 
harbor seals at the Children's Pool in a 24-hour period across that two 
months and compare it to the mean of the lower 95 percent confidence 
interval in Figure 1 (see below). If the observed mean is lower, the 
City of San Diego will shut-down construction activities and work with 
NMFS and other harbor seal experts (e.g., Mark Lowry, Dr. Sarah Allen, 
Dr. Pamela Yochem, and/or Dr. Brent Stewart) to develop and implement a 
revised mitigation plan to further reduce the number of takes and 
potential impacts. Once a week every week thereafter, the City of San 
Diego will take the same mean of observed harbor seals across the 
previous three tide cycles (a tide cycle is approximately 2 weeks) and 
compare it to the 95% lower confidence interval in Figure 1 for the 
same time period. If the observed mean is lower, the City of San Diego 
will shut-down and take the action described above. If abandonment of 
the site is likely, monitoring will be expanded away from the 
Children's Pool to determine if animals have been temporarily displaced 
to known haul-out sites in the southern California area (e.g., north 
end of Torrey Pines, cave on the exposed ocean side of Point Loma, 
etc.). For the purpose of this proposed action, NMFS will consider the 
Children's Pool site to possibly be abandoned if zero harbor seals are 
present each day during the daytime and nighttime hours for at least 
three tide cycles (a tide cycle is approximately 2 weeks), but this 
cannot be confirmed until observations continue to be zero during a 
full pupping and molting season.
[GRAPHIC] [TIFF OMITTED] TN11FE14.003

    More information regarding the City of San Diego's monitoring and 
mitigation measures, for the proposed construction activities at the 
Children's Pool Lifeguard Station can be found in the IHA application.
    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other 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. NMFS's evaluation of potential measures 
included consideration of the following factors in relation in one 
another:
     The manner in which, and the degree to which, the 
successful

[[Page 8170]]

implementation of the measure is expected to minimize adverse impacts 
to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation, including consideration of personnel safety, 
practicality of implementation, and impact on the effectiveness of the 
activity.
    NMFS has determined that the proposed mitigation measures will 
effect the least practicable adverse impact on the species or stocks of 
marine mammals in the action area.

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, where applicable, set forth 
``requirements pertaining to the monitoring and reporting of such 
taking.'' The MMPA implementing regulations at 50 CFR 216.104 (a)(13) 
require that requests for IHAs must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the action area.
    The City of San Diego has developed a monitoring plan (see Appendix 
I. Mitigated Negative Declaration in the IHA application) based on 
discussions between the project biologist, Dr. Doyle Hanan, and NMFS 
biologists. The plan has been vetted by City of San Diego planners and 
reviewers. The plan has been formally presented to the public for 
review and comment. The City of San Diego has responded in writing and 
in public testimony (see City of Council Hearing, December 14, 2011) to 
all public concerns.
    The basic plan is to survey prior to construction activities and 
then monitor construction activities by NMFS-approved PSOs with high-
resolution binoculars and handheld digital sound level meters 
(measuring devices). PSOs will observe from a station along the 
breakwater wall as well as the base of the cliff below the proposed 
construction area. PSOs will be on site approximately 30 minutes before 
the start of construction activities and continue for 30 minutes after 
activities have ceased. Monitors will have authority to stop 
construction as necessary depending on sound levels, pinniped presence, 
and distance from sound sources. Daily monitoring reports will be 
maintained for periodic summary reports to the City of San Diego and to 
NMFS. Observations will be entered into and maintained on Hanan & 
Associates computers. The City of San Diego plans to follow the 
reporting in the Mitigated Negative Declaration that states ``the 
biologist shall document field activity via the Consultant Site Visit 
Record. The Consultant Site Visit Record shall be either emailed or 
faxed to the City of San Diego's Mitigation Monitoring Coordination 
process (MMC) on the 1st day of monitoring, the 1st week of each month, 
the last day of monitoring, and immediately in the case of any 
undocumented discovery. The project biologist shall submit a final 
construction monitoring report to MMC within 30 days of construction 
completion.'' The MMC ``coordinates the monitoring of development 
projects and requires that changes are approved and implemented to be 
in conformance with the permit requirements and to minimize any damage 
to the environment.'' These documents will also be sent to NMFS.
    The City of San Diego will include sound measurements at and near 
the proposed construction site in their initial survey prior to the 
activities as a background and baseline for the project. While no 
specific acoustic study is planned, the City of San Diego's Mitigated 
Negative Declaration states that marine mammal monitoring shall be 
conducted for three to five days prior to construction and shall 
include hourly systematic counts of pinnipeds using the beach, Seal 
Rock, and associated reef areas. Monitoring three to five days prior to 
construction will provide baseline data regarding recent haul-out 
behavior and patterns as well as background noise levels near the time 
of the proposed construction activities. The City of San Diego has 
modified its monitoring program to include 60 days of monitoring post- 
construction activities. Following construction, the City of San Diego 
will have a program of onsite PSOs that will randomly select a day per 
week to monitor. During the proposed construction activities, 
monitoring shall assess behavior and potential behavioral responses to 
construction noise and activities. Visual digital recordings and 
photographs shall be used to document individuals and behavioral 
responses to proposed construction. The City of San Diego plans to make 
hourly counts of the number of pinnipeds present and record sound or 
visual events that result in behavioral responses and changes, whether 
during construction or from public stimuli. During these events, 
pictures and video will also be taken when possible. The ``Mitigated 
Negative Declaration'' states ``monitoring shall assess behavior and 
potential behavioral responses to construction noise and activities. 
Visual digital recordings and photographs shall be used to document 
individuals and behavioral responses to construction.''
    The WAN's La Jolla Harbor Seal Webcam was attached to the old (now 
demolished) lifeguard station and is no longer available online (https://www.wanconservancy.org/la_jolla_harbor_seal_earthcam.htm); 
therefore, the City of San Diego cannot do periodic checks using the 
webcam for monitoring purposes as required during the 2013 IHA. The 
City of San Diego has stated that there is no suitable place to mount 
the camera at the construction site. The camera was not expected to 
replace NMFS-qualified PSOs at the site making accurate counts, 
measuring sound levels and observing the public and the construction, 
as well as the harbor seals. In the old camera view, a person may be 
able to see visual evidence of Level B harassment, but it probably 
would not be able to be distinguished between harassment from 
construction activities and the public since the camera has a limited 
scope and only shows the Children's Pool beach and pinnipeds (usually a 
specific portion of the beach, but not the reef nor nearby beaches).
    Consistent with NMFS procedures, the following marine mammal 
monitoring and reporting shall be performed for the proposed action:
    (1) The PSO shall be approved by NMFS prior to construction 
activities.
    (2) The NMFS-approved PSO shall attend the project site prior to, 
during, and after construction activities cease each day throughout the 
construction window.
    (3) The PSO shall search for marine mammals within the Children's 
Pool area.
    (4) The PSO shall be present during construction activities to 
observe for the presence of marine mammals in the vicinity of the 
specified activity. All such activity will occur during daylight hours 
(i.e., 30 minutes after sunrise and 30 minutes before sunset). If 
inclement weather limits visibility within the area of effect, the PSO 
will perform visual scans to the extent conditions allow.
    (5) If marine mammals are sighted by the PSO within the acoustic 
threshold areas, the PSO shall record the number of marine mammals 
within the area of effect and the duration of their presence while the 
noise-generating activity is occurring. The PSO will also note whether 
the marine mammals appeared to respond to the noise and if so, the 
nature of that response. The PSO shall

[[Page 8171]]

record the following information: date and time of initial sighting, 
tidal stage, weather conditions, Beaufort sea state, species, behavior 
(activity, group cohesiveness, direction and speed of travel, etc.), 
number, group composition, distance to sound source, number of animals 
impacted, construction activities occurring at time of sighting, and 
monitoring and mitigation measures implemented (or not implemented). 
The observations will be reported to NMFS.
    (6) A final report will be submitted summarizing all in-air 
construction activities and marine mammal monitoring during the time of 
the authorization, and any long term impacts from the project.
    A written log of dates and times of monitoring activity will be 
kept. The log shall report the following information:
     Time of observer arrival on site;
     Time of the commencement of in-air noise generating 
activities, and description of the activities;
     Distances to all marine mammals relative to the sound 
source;
     For harbor seal observations, notes on seal behavior 
during noise-generating activity, as described above, and on the number 
and distribution of seals observed in the project vicinity;
     For observations of all marine mammals other than harbor 
seals, the time and duration of each animal's presence in the project 
vicinity; the number of animals observed; the behavior of each animal, 
including any response to noise-generating activities;
     Time of the cessation of in-air noise generating 
activities; and
     Time of observer departure from site.

All monitoring data collected during proposed construction will be 
included in the biological monitoring notes to be submitted. A final 
report summarizing the construction monitoring and any general trends 
observed will also be submitted to NMFS within 90 days after monitoring 
has ended during the period of the lifeguard station construction.
    The City of San Diego would notify NMFS Headquarters and the NMFS 
Southwest Regional Office prior to initiation of the construction 
activities. A draft final report must be submitted to NMFS within 90 
days after the conclusion of the construction activities of the 
Children's Pool Lifeguard Station. The report would include a summary 
of the information gathered pursuant to the monitoring requirements set 
forth in the IHA, including dates and times of operations, and all 
marine mammal sightings (dates, times, locations, species, behavioral 
observations [activity, group cohesiveness, direction and speed of 
travel, etc.], tidal stage, weather conditions, Beaufort sea state and 
wind force, activities, associated construction activities). A final 
report must be submitted to the Regional Administrator within 30 days 
after receiving comments from NMFS on the draft final report. If no 
comments are received from NMFS, the draft final report would be 
considered to be the final report.
    While the IHA would not authorize injury (i.e., Level A 
harassment), serious injury, or mortality, should the applicant, 
contractor, monitor or any other individual associated with the 
construction project observe an injured or dead marine mammal, the 
incident (regardless of cause) will be reported to NMFS as soon as 
practicable. The report should include species or description of 
animal, condition of animal, location, time first found, observed 
behaviors (if alive) and photo or video, if available.
    In the unanticipated event that the City of San Diego discovers a 
live stranded marine mammal (sick and/or injured) at Children's Pool, 
they shall immediately contact Sea World's stranded animal hotline at 
1-800-541-7235. Sea World shall also be notified for dead stranded 
pinnipeds so that a necropsy can be performed. In all cases, NMFS shall 
be notified as well, but for immediate response purposes, Sea World 
shall be contacted first.
    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by this IHA, 
such as an injury (Level A harassment), serious injury or mortality, 
the City of San Diego shall immediately cease the specified activities 
and immediately report the incident to the Chief of the Permits and 
Conservation Division, Office of Protected Resources, NMFS, at 301-427-
8401 and/or by email to Jolie.Harrison@noaa.gov and 
Howard.Goldstein@noaa.gov and the West Coast Regional Stranding 
Coordinator (Justin.Greenman@noaa.gov). The report must include the 
following information:
     Time, date, and location (latitude/longitude) of the 
incident;
     The type of activity involved;
     Description of the circumstances during and leading up to 
the incident;
     Status of all sound source use in the 24 hours preceding 
the incident; water depth; environmental conditions (e.g., wind speed 
and direction, Beaufort sea state, cloud cover, and visibility);
     Description of marine mammal observations in the 24 hours 
preceding the incident; species identification or description of the 
animal(s) involved;
     The fate of the animal(s); and photographs or video 
footage of the animal (if equipment is available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with the City of 
San Diego to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The City of San 
Diego may not resume their activities until notified by NMFS via 
letter, email, or telephone.
    In the event that the City of San Diego discovers an injured or 
dead marine mammal, and the lead PSO determines that the cause of the 
injury or death is unknown and the death is relatively recent (i.e., in 
less than a moderate state of decomposition as described in the next 
paragraph), the City of San Diego will immediately report the incident 
to the Chief of the Permits and Conservation Division, Office of 
Protected Resources, NMFS, at 301-427-8401, and/or by email to 
Jolie.Harrison@noaa.gov and Howard.Goldstein@noaa.gov, and the NMFS 
West Coast Regional Office (1-866-767-6114) and/or by email to the West 
Coast Regional Stranding Coordinator (Justin.Greenman@noaa.gov). The 
report must include the same information identified above. Activities 
may continue while NMFS reviews the circumstances of the incident. NMFS 
will work with the City of San Diego to determine whether modifications 
in the activities are appropriate.
    In the event that the City of San Diego discovers an injured or 
dead marine mammal, and the lead PSO determines that the injury or 
death is not associated with or related to the activities authorized 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the City of San Diego shall report 
the incident to the Chief of the Permits and Conservation Division, 
Office of Protected Resources, NMFS, at 301-427-8401, and/or by email 
to Jolie.Harrison@noaa.gov and Howard.Goldstein@noaa.gov, and the NMFS 
West Coast Regional Office (1-866-767-6114) and/or by email to the West 
Coast Regional Stranding Coordinator (Justin.Greenman@noaa.gov), within 
24 hours of the discovery. The City of San Diego shall provide 
photographs or video footage (if available) or other documentation of 
the stranded animal sighting to NMFS and the Marine Mammal Stranding 
Network. Activities may continue while NMFS reviews the circumstances 
of the incident.

[[Page 8172]]

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].
    The City of San Diego and NMFS anticipate takes of Pacific harbor 
seals, California sea lions, and northern elephant seals by Level B 
(behavioral) harassment only incidental to the proposed construction 
project at the Children's Pool. No takes by injury (Level A 
harassment), serious injury, or mortality is expected. There is a high 
likelihood that many of the harbor seals present during the proposed 
construction activities will not be flushed off of the beach or rocks, 
as pinnipeds at this site are conditioned to human presence and loud 
noises (Hanan, 2004; Hanan & Associates, 2011) (see https://www.youtube.com/watch?v=4IRUYVTULsg).
    With proposed construction activities scheduled to begin in June 
2014, the City of San Diego expects a range of 0 to 190 harbor seals to 
be present daily during June and a seasonal decline through November to 
about 0 to 50 harbor seals present daily. If all of the estimated 
harbor seals present are taken by incidental harassment each day, there 
could be a maximum of 10,000 takes (i.e., approximately 2,947 adult 
males and 2,211 juvenile males, 2,842 adult females and 2,000 juvenile 
females based on age and sex ratios presented in Harkonen et al., 1999) 
over the entire duration of the activities. The City of San Diego 
expects about 90% of the adult females to be pregnant after June and 
July (Greig, 2002). An unknown portion of the incidental takes would be 
from repeated exposures as harbor seals leave and return to the 
Children's Pool area. A polynomial curve fit to counts by month was 
used by the City of San Diego to estimate the number of harbor seals 
expected to be hauled-out by day (see below and Figure 2 of the IHA 
application).
    Figure 2. Estimated total harbor seals by month based on counts at 
the site by Hanan & Associates, Yochem and Stewart, and Children's Pool 
docents. The polynomial curve fits to counts by months was used to 
estimate harbor seals expected to be hauled-out by day.
[GRAPHIC] [TIFF OMITTED] TN11FE14.004

    Assuming the total seals predicted to haul-out daily at the 
Children's Pool are exposed to sound levels that are considered Level B 
harassment during days where sound is predicted to exceed 90 dB at the 
proposed construction site (65 days), there could be a maximum of 
approximately 10,000 incidental takes (i.e., exposures) of 
approximately up to 600 individual Pacific harbor seals over the 
duration of the activities. The estimated 600 individual Pacific harbor 
seals will be taken by Level B harassment multiple times during the 
proposed construction activities. Very few California sea lions and/or 
northern elephant seals are ever observed at the Children's Pool (i.e., 
one or two individuals). The City of San Diego requests the authority 
to incidentally take (i.e., exposures) 10,000 Pacific harbor seals, 100 
California sea lions, and 25 northern elephant seals, which would 
equate to 600, 2, and 1 individuals, respectively, being exposed 
multiple times. More information on the number of requested authorized 
takes, estimated number of individuals, and the approximate percentage 
of the stock

[[Page 8173]]

for the three species in the action area can be found in Table 2 
(below).
    NMFS will consider pinnipeds flushing into the water; moving more 
than 1 m (3.3 ft), but not into the water; becoming alert and moving, 
but do not move more than 1 m; and changing direction of current 
movement by individuals as behavioral criteria for take by Level B 
harassment. The City of San Diego will estimate the portion of 
pinnipeds present that are observed to exhibit these behaviors as well 
as the apparent source of the stimulus (i.e., if it is from human 
presence, construction activities, or other).

   Table 2--Summary of the Anticipated Incidental Take by Level B Harassment of Pinnipeds for the City of San
 Diego's Proposed Construction Activities Generating In-Air Noise at the Children's Pool Lifeguard Station in La
                                                    Jolla, CA
----------------------------------------------------------------------------------------------------------------
                                            Requested Take                               Approximate  Percentage
               Species                  Authorization  (Number    Estimated Number of      of  Estimated Stock
                                            of Exposures)          Individuals Taken          (Individuals)
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal..................                   10,000                      600                     1.98
California sea lion..................                      100                        2                    <0.01
Northern elephant seal...............                       25                        1                    <0.01
----------------------------------------------------------------------------------------------------------------

Encouraging and Coordinating Research

    Each construction phase and potential harassment activity will be 
evaluated as to observed sound levels and any pinniped reaction by type 
of sound source. Flushing will be documented by sex and age class. 
These data will provide instructional for IHA permitting in future 
projects. Potential mitigation will be discussed and suggested in the 
final report. NMFS has encouraged the City of San Diego to work with 
WAN to review and analyze any available data to determine baseline 
information as well as evaluate the impacts from the construction 
activities on the pinnipeds at the Children's Pool.

Analysis and Preliminary Determinations

Negligible Impact

    Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival'' (50 CFR 216.103). A 
negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of Level B harassment takes, 
alone, is not enough information on which to base an impact 
determination. In addition to considering estimates of the number of 
marine mammals that might be ``taken'' through behavioral harassment, 
NMFS must consider other factors, such as the likely nature of any 
responses (their intensity, duration, etc.), the context of any 
responses (critical reproductive time or location, migration, etc.), as 
well as the number and nature of estimated Level A harassment takes, 
the number of estimated mortalities, and effects on habitat.
    In making a negligible impact determination, NMFS evaluated factors 
such as:
    (1) The number of anticipated injuries, serious injuries, or 
mortalities;
    (2) The number, nature, and intensity, and duration of Level B 
harassment (all relatively limited); and
    (3) The context in which the takes occur (i.e., impacts to areas of 
significance, impacts to local populations, and cumulative impacts when 
taking into account successive/contemporaneous actions when added to 
baseline data);
    (4) The status of stock or species of marine mammals (i.e., 
depleted, not depleted, decreasing, increasing, stable, impact relative 
to the size of the population);
    (5) Impacts on habitat affecting rates of recruitment/survival; and
    (6) The effectiveness of monitoring and mitigation measures.
    No injuries (Level A harassment), serious injuries, or mortalities 
are anticipated to occur as a result of the City of San Diego's 
proposed construction activities, and none are authorized by NMFS. The 
proposed activities are not expected to result in the alteration of 
reproductive behaviors, and the potentially affected species would be 
subjected to only temporary and minor behavioral impacts.
    As discussed in detail above, the proposed project scheduling 
avoids sensitive life stages for Pacific harbor seals. Proposed project 
activities producing in-air noise would commence in June and end by 
December 15th. June is after the end of the pupping season and affords 
additional time to accommodate lactation and weaning of season pups as 
well as considers periods of lowest haul-out occurrence. The December 
15th end date should provide more protection for the pregnant and 
nursing harbor seals in case they give birth before January 1st; 
however, most births occur after the beginning of January. Table 2 of 
this document outlines the number of requested Level B harassment takes 
that are anticipated as a result of these proposed activities. Due to 
the nature, degree, and context of Level B (behavioral) harassment 
anticipated and described (see ``Potential Effects on Marine Mammals'' 
section above) in this notice, this activity is not expected to impact 
rates of annual recruitment or survival for the affected species or 
stock (i.e., California stock of Pacific harbor seals, U.S. stock of 
California sea lions, and California breeding stock of northern 
elephant seals), particularly given the NMFS and the applicant's plan 
to implement required mitigation, monitoring, and reporting measures to 
minimize impacts to marine mammals.
    For the other marine mammal species that may occur within the 
proposed action area, there are no known designated or important 
feeding and/or reproductive areas. Many animals perform vital 
functions, such as feeding, resting, traveling, and socializing, on a 
diel cycle (i.e., 24 hour cycle). Behavioral reactions to noise 
exposure (such as disruption of critical life functions, displacement, 
or avoidance of important habitat) are more likely to be significant if 
they last more than one diel cycle or recur on subsequent days 
(Southall et al., 2007). However, for many years Pacific harbor seals 
have been hauling-out at Children's Pool during the year (including 
during pupping season and while females are pregnant) and have been 
exposed to anthropogenic sound sources such as vehicle traffic, human 
voices, etc. and are frequently exposed to stimuli from human presence. 
While studies have

[[Page 8174]]

shown the types of sound sources used during the proposed construction 
activities have the potential to displace marine mammals from breeding 
areas for a prolonged period (e.g., Lusseau and Bejder, 2007; Weilgart, 
2007), based on the best available information, this does not seem to 
be the case for the Pacific harbor seals at the Children's Pool. Over 
many years, the Pacific harbor seals have repeatedly hauled-out to pup 
and overall the NMFS Stock Assessment Reports (NMFS, 2011) for this 
stock have shown that the population is increasing and is considered 
stable. Additionally, the proposed construction activities will be 
increasing sound levels in the environment in a relatively small area 
surrounding the lifeguard station (compared to the range of the 
animals), and some animals may only be exposed to and harassed by sound 
for less than a day.
    Of the 3 marine mammal species under NMFS jurisdiction that may or 
are known to likely occur in the proposed action area, none are listed 
as threatened or endangered under the ESA. No incidental take has been 
requested to be authorized for ESA-listed species as none are expected 
to be within the proposed action area. There is generally insufficient 
data to determine population trends for the other depleted species in 
the proposed study area. To protect these animals (and other marine 
mammals in the proposed action area), the City of San Diego shall 
schedule construction activities with highest sound levels during the 
annual period of lowest haul-out occurrence and during the daily period 
of lowest haul-out occurrence; limit activities to the hours of 
daylight; erect a temporary visual and acoustic barrier; use PSOs and 
prohibit construction activities during harbor seal pupping season. No 
injury, serious injury, or mortality is expected to occur and due to 
the nature, degree, and context of the Level B harassment anticipated, 
and the proposed activity is not expected to impact rates of 
recruitment or survival.

Small Numbers

    As mentioned previously, NMFS estimates that 3 species of marine 
mammals under its jurisdiction could be potentially affected by Level B 
harassment over the course of the proposed IHA. It is estimated that up 
to 600 individual Pacific harbor seals, 2 individual California sea 
lions, and 1 northern elephant seal will be taken (multiple times) by 
Level B harassment, which would be approximately 1.98, less than 0.01, 
and less than 0.01 of the respective California, U.S., and California 
breeding stocks. The population estimates for the marine mammal species 
that may be taken by Level B harassment were provided in Table 2 of 
this document. NMFS's practice has been to apply the 90 dB re 20 [mu]Pa 
and 100 dB re 20 [mu]Pa received level threshold for in-air sound 
levels to determine whether take by Level B harassment occurs. Southall 
et al. (2007) provide a severity scale for ranking observed behavioral 
responses of both free-ranging marine mammals and laboratory subjects 
to various types of anthropogenic sound (see Table 4 in Southall et al. 
[2007]). NMFS has not established a threshold for Level A harassment 
(injury) for marine mammals exposed to in-air noise, however, Southall 
et al. (2007) recommends 149 dB re 20 [micro]Pa (peak flat) as the 
potential threshold for injury from in-air noise for all pinnipeds. No 
in-air sounds from proposed construction activities will exceed 110 dB 
at the source and no measured sounds approached that sound level in 
2013.
    While behavioral modifications, including temporarily vacating the 
area during the proposed construction activities, may be made by these 
species to avoid the resultant acoustic disturbance, the availability 
of alternate areas within these areas for species and the short and 
sporadic duration of the proposed activities, have led NMFS to 
determine that the taking by Level B harassment from the specified 
activity will have a negligible impact on the affected species in the 
specified geographic region. NMFS believes that the time period of the 
proposed construction activities, the requirement to implement 
mitigation measures (e.g., prohibiting construction activities during 
pupping season, scheduling operations to periods of the lowest haul-out 
occurrence, visual and acoustic barriers, and the addition of a new 
measure that helps protect against unexpected abandonment of the site), 
and the inclusion of the monitoring and reporting measures, will reduce 
the amount and severity of the potential impacts from the proposed 
activity to the degree that will have a negligible impact on the 
species or stocks in the proposed action area.
    NMFS has preliminarily determined, provided that the aforementioned 
mitigation and monitoring measures are implemented, that the impact of 
the proposed construction activities at the Children's Pool Lifeguard 
Station in La Jolla, CA, June 2014 to June 2015, may result, at worst, 
in a temporary modification in behavior and/or low-level physiological 
effects (Level B harassment) of small numbers of certain species of 
marine mammals. See Table 2 for the requested authorized take numbers 
of marine mammals. Impact on Availability of Affected Species or Stock 
for Taking for Subsistence Uses.
    There are not relevant subsistence uses of marine mammals 
implicated by this action in the action area (off of southern 
California in the northeast Pacific Ocean). Therefore, NMFS has 
determined that the total taking of affected marine mammal species or 
stocks would not have an unmitigable adverse impact on the availability 
of such species or stocks for taking for subsistence purposes.

Endangered Species Act

    NMFS (Permits and Conservation Division) has determined that a 
section 7 consultation for the issuance of an IHA under section 
101(a)(5)(D) of the MMPA for this activity is not necessary for any 
ESA-listed marine mammal species under its jurisdiction as the proposed 
action will not affect ESA-listed species.

National Environmental Policy Act

    To meet NMFS's National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.) requirements for the issuance of an IHA to the City of 
San Diego, NMFS prepared an Environmental Assessment (EA) in 2013 for a 
similar activity titled ``Environmental Assessment on the Issuance of 
an Incidental Harassment Authorization to the City of San Diego to Take 
Marine Mammals by Harassment Incidental to Demolition and Construction 
Activities at the Children's Pool Lifeguard Station in La Jolla, 
California'' to comply with the Council of Environmental Quality (CEQ) 
regulations and NOAA Administrative Order (NAO) 216-6. NMFS will 
evaluate the proposed action to determine whether the 2013 EA supports 
the City of San Diego's 2014 IHA request.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to the City of San Diego for conducting construction 
activities at the Children's Pool Lifeguard Station in La Jolla, CA, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated. The duration of the IHA would not exceed 
one year from the date of its issuance. The proposed IHA language is 
provided below:
    City of San Diego, Engineering and Capital Projects Department, 600 
B

[[Page 8175]]

Street, Suite 800, MS 908A, San Diego, California 92101-4502, is hereby 
authorized under section 101(a)(5)(D) of the Marine Mammal Protection 
Act (16 U.S.C. 1371(a)(5)(D)), to harass small numbers of marine 
mammals incidental to the construction activities at the Children's 
Pool Lifeguard Station, June 2014 through June 2015, contingent upon 
the following conditions:
    1. This Authorization is valid from June 28, 2014 through June 27, 
2015.
    2. This Authorization is valid only for the construction activities 
at the Children's Pool Lifeguard Station that shall occur in the 
following specified geographic area:
    The La Jolla Children's Pool Lifeguard Station at 827\1/2\ Coast 
Boulevard, La Jolla California 92037 (32[deg]50'50.02'' North, 
117[deg]16'42.8'' West), as specified in the City of San Diego's 
Incidental Harassment Authorization application.
    3. Species Authorized and Level of Takes
    (a) The incidental taking of marine mammals, by Level B harassment 
only, is limited to the following species in the La Jolla, California 
area:
    (i) Pinnipeds--see Table 2 (above) for authorized species and take 
numbers.
    (ii) If any marine mammal species are encountered during 
construction activities that are not listed in Table 2 (above) for 
authorized taking and are likely to be exposed to sound pressure levels 
(SPLs) at or above 90 decibels (dB) re 20 [micro]Pa for harbor seals 
and/or at or above 100 dB re 20 [mu]Pa for all pinniped species except 
harbor seals (for in-air noise), then the Holder of this Authorization 
must shut-down operations to avoid take.
    (b) The taking by injury (Level A harassment), serious injury, or 
death of any of the species listed in Condition 3(a) above, or the 
taking of any kind of any other species of marine mammal, is prohibited 
and may result in the modification, suspension or revocation of this 
Authorization.
    4. The methods authorized for taking by Level B harassment are 
limited to acoustic-generating equipment sources (e.g., backhoe, dump 
truck, cement truck, air compressor, electric screw guns, jackhammer, 
concrete saw, chop saw, and hand tools) without an amendment to this 
Authorization:
    5. The taking of any marine mammal in a manner prohibited under 
this Authorization must be reported immediately to the Office of 
Protected Resources, National Marine Fisheries Service (NMFS), at 301-
427-8401.
    6. Mitigation and Monitoring Requirements.
    The Holder of this Authorization is required to implement the 
following mitigation and monitoring requirements when conducting the 
specified activities in order to achieve the least practicable adverse 
impact on affected marine mammal species or stocks:
    (a) The construction activities shall be prohibited during the 
Pacific harbor seal pupping season at Children's Pool (December 15th to 
May 15th) and for an additional two weeks to accommodate lactation and 
weaning of late season pups. Thus, construction shall be prohibited 
from December 15th to June 1st.
    (b) The construction activities shall be scheduled Monday through 
Friday; however, they may continue on weekends to ensure completion of 
the project in 2014. To the maximum extent practicable, the 
construction activities shall be conducted from approximately 8:30 a.m. 
to 3:30 p.m., during the daily period of lowest haul-out occurrence; 
however, construction activities may be extended from 7:00 a.m. to 7:00 
p.m. (i.e., daylight hours) to help assure that the project is 
completed during the 2014 construction window. Harbor seals typically 
have the highest daily or hourly haul-out period during the afternoon 
from 3:00 p.m. to 6:00 p.m.
    (c) A visual and acoustic barrier will be erected and maintained 
for the duration of the project to shield construction activities from 
beach view. The temporary barrier shall consist of 1.3 to 1.9 
centimeter (\1/2\ to \3/4\ inch) plywood constructed 1.2 to 2.4 meters 
(4 to 8 feet) high depending on the location. The barriers will be 
placed at the site with input from NMFS Southwest Regional Office 
personnel so that they will hide as advantageously as possible the 
construction activities that may be seen by pinnipeds.
    (d) Use a NMFS-approved, trained Protected Species Observer (PSO) 
to detect, document, and minimize potential impacts from construction 
activities. The PSO shall attend the project site 30 minutes prior 
until 30 minutes after construction activities cease each day 
throughout the construction window. The PSO shall be approved by NMFS 
prior to construction activities. The PSO shall search for marine 
mammals using binoculars and/or the naked eye within the Level B 
(behavioral) harassment zones, which may vary upon the type of in-air 
sound being produced by the construction activities. The PSO will 
observe from a station along the breakwater wall as well as the base of 
the cliff below the construction area. If inclement weather limits 
visibility within the area of effect, the PSO will perform visual scans 
to the extent conditions allow. The PSO will not have to monitor on 
days or portions of days when there will be little chance of 
disturbance from construction activities (e.g., nothing visual, sound 
levels at source less than 90 dB re 20 [mu]Pa, or all work activities 
inside the building).
    (e) The PSO shall visually scan the action area for the presence of 
marine mammals at least 30 minutes prior to the start-up and 
continuously throughout periods of in-air noise-generating activities. 
Visual scans shall continue for at least 30 minutes after each noise-
generating episode has ceased.
    (f) The PSO shall use visual digital recordings and photographs to 
document individuals and behavioral responses to the construction 
activities. The PSO shall make hourly counts of the number of pinnipeds 
present and record sound or visual events that result in behavioral 
responses and changes, whether during construction activities or from 
public stimuli. During these events, pictures and videos will be taken 
when possible to document individuals and behavioral responses.
    (g) A PSO shall record the following information when a marine 
mammal is sighted:
    (i) Species, group size, age/size/sex categories (if determinable), 
behavior when first sighted and after initial sighting, heading (if 
consistent), distribution, bearing and distance relative to the sound 
source(s), group cohesiveness, duration of presence, apparent reaction 
to the construction activities (e.g., none, avoidance, approach, etc.), 
direction and speed of travel, duration of presence, and if there are 
other causes of potential disturbance occurring;
    (ii) Date, time, location, activity of construction operations, 
monitoring and mitigation measures implemented (or not implemented), 
tidal stage, weather conditions, Beaufort sea state, wind speed, 
visibility, and sun glare; and
    (iii) The data listed under Condition 6(g)(ii) shall also be 
recorded at the start and end of each observation watch and during a 
watch whenever there is a change in one or more variables.
    (h) A PSO shall also record the time of arrival and departure on 
site, commencement and cessation of in-air noise construction 
activities, and presence of humans on the beach. Whenever possible, the 
PSO should determine as to whether or not the harassment or pinnipeds 
is attributable to the construction activities and/or the presence of 
the public on the beach and around the Children's Pool area. A PSO 
shall record the number of people on the beach and surrounding areas as 
well as their location relative to the animals.

[[Page 8176]]

    (i) Establish buffer zones (i.e., where sound pressure levels 
[SPLs] are at or above 90 decibels (dB) re 20 [micro]Pa for harbor 
seals and/or at or above 100 dB re 20 [micro]Pa for all pinniped 
species except harbor seals [for in-air noise]) around the construction 
activities so that in-air sounds associated with the construction 
activities no longer exceed levels that are potentially harmful to 
marine mammals.
    (j) In-air noise monitoring and reporting shall be performed during 
the construction activities at and near the Children's Pool Lifeguard 
Station. The PSO shall have access to handheld digital sound level 
measuring devices. The study will characterize in-air sound levels in 
the area related to and in the absence of all construction activities 
(as a background and baseline for the project), and confirm or identify 
harassment isopleths for all types of and construction activities 
conducted. Monitoring shall be conducted three to five days prior to 
construction activities and shall include hourly systematic counts of 
pinnipeds using the beach, Seal Rock, and associated reef areas to 
provide baseline data regarding recent haul-out behavior and patterns 
as well as background noise levels near the time and construction 
activities. Monitoring shall continue for 60 days following the end of 
demolition and construction activities. Following construction, the 
City of San Diego will have a program where a PSO that will randomly 
select a day per week to visit the Children's Pool.
    (k) After the first two months of monitoring during construction 
activities, the City of San Diego shall take the mean number of 
observed harbor seals at the Children's Pool in a 24-hour period across 
the two months and compare it to the mean of the lower 95 percent 
confidence interval in Figure 1 (see below). If the observed mean is 
lower, the City of San Diego shall shut-down construction activities 
and work with NMFS and other harbor seal experts (e.g., Mark Lowry, Dr. 
Sarah Allen, Dr. Pamela Yochem, and/or Dr. Brent Stewart) to develop 
and implement a revised mitigation plan to further reduce the number of 
takes and potential impacts. Once a week every week thereafter, the 
City of San Diego shall take the same mean of observed harbor seals 
across the previous three tide cycles (a tide cycle is approximately 2 
weeks) and compare it to the 95% lower confidence interval in Figure 1 
for the same time period. If the observed mean is lower, the City of 
San Diego shall shut-down and take the action described above. If 
abandonment of the site is likely, monitoring shall be expanded away 
from the Children's Pool to determine if animals have been temporarily 
displaced to haul-out sites in the southern California area (e.g., 
Torrey Pines, Point Loma, etc.).
    7. Reporting Requirements.
    The Holder of this Authorization is required to:
    (a) Submit a draft report on all activities and monitoring results 
to the Office of Protected Resources, NMFS, within 90 days of the 
completion of the construction activities at the Children's Pool 
Lifeguard Station. This report must contain and summarize the following 
information:
    (i) Dates, times, locations, weather, sea conditions (including 
Beaufort sea state and wind speed), and associated activities during 
all construction activities and marine mammal sightings;
    (ii) Species, number, location, distance from the PSO, and behavior 
of any marine mammals, as well as associated construction activities, 
observed throughout all monitoring activities.
    (iii) An estimate of the number (by species) of marine mammals 
that: (A) are known to have been exposed to the construction activities 
(based on visual observation) at received levels greater than or equal 
90 dB re 20 [mu]Pa for harbor seals and 100 dB re 20 [mu]Pa for all 
other pinniped species for in-air noise with a discussion of any 
specific behaviors those individuals exhibited; and (B) may have been 
exposed (based on reported values and modeling measurements for the 
construction equipment) to the construction activities in-air noise at 
received levels greater than or equal 90 dB re 20 [mu]Pa for harbor 
seals and 100 dB re 20 [mu]Pa for all other pinniped species with a 
discussion of the nature of the probable consequences of that exposure 
on the individuals that have been exposed. NMFS will consider pinnipeds 
flushing into the water; moving more than 1 m (3.3 ft), but not into 
the water; becoming alert and moving, but not moving more than 1 m; and 
changing direction of current movement by individuals as behavioral 
criteria for take by Level B harassment.
    (iii) A description of the implementation and effectiveness of the: 
monitoring and mitigation measures of the Incidental Harassment 
Authorization.
    (b) Submit a final report to the Chief, Permits and Conservation 
Division, Office of Protected Resources, NMFS, within 30 days after 
receiving comments from NMFS on the draft report. If NMFS decides that 
the draft report needs no comments, the draft report shall be 
considered to be the final report.
    8. In the unanticipated event that the City of San Diego discovers 
a live stranded marine mammal (sick and/or injured) at Children's Pool, 
they shall immediately contact Sea World's stranded animal hotline at 
1-800-541-7235. Sea World shall also be notified for dead stranded 
pinnipeds so that a necropsy can be performed. In all cases, NMFS shall 
be notified as well, but for immediate responses purposes, Sea World 
shall be contacted first.

Reporting Prohibited Take

    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by this 
Authorization, such as an injury (Level A harassment), serious injury 
or mortality, the City of San Diego shall immediately cease the 
specified activities and immediately report the incident to the Chief 
of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, at 301-427-8401 and/or by email to 
Jolie.Harrison@noaa.gov and Howard.Goldstein@noaa.gov and the West 
Coast Regional Stranding Coordinator (Justin.Greenman@noaa.gov). The 
report must include the following information:
    (a) Time, date, and location (latitude/longitude) of the incident; 
the type of activity involved; description of the circumstances during 
and leading up to the incident; status of all sound source use in the 
24 hours preceding the incident; water depth; environmental conditions 
(e.g., wind speed and direction, Beaufort sea state, cloud cover, and 
visibility); description of marine mammal observations in the 24 hours 
preceding the incident; species identification or description of the 
animal(s) involved; the fate of the animal(s); and photographs or video 
footage of the animal (if equipment is available).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS shall work with the City of 
San Diego to determine what is necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. The City of San 
Diego may not resume their activities until notified by NMFS via letter 
or email, or via telephone.

Reporting an Injured or Dead Marine Mammal With an Unknown Cause of 
Death

    In the event that the City of San Diego discovers an injured or 
dead marine mammal, and the lead PSO determines that the cause of the 
injury or death is unknown and the death is relatively

[[Page 8177]]

recent (i.e., in less than a moderate state of decomposition as 
described in the next paragraph), the City of San Diego will 
immediately report the incident to the Chief of the Permits and 
Conservation Division, Office of Protected Resources, NMFS, at 301-427-
8401, and/or by email to Jolie.Harrison@noaa.gov and 
Howard.Goldstein@noaa.gov, and the NMFS West Coast Regional Office (1-
866-767-6114) and/or by email to the West Coast Regional Stranding 
Coordinator (Justin.Greenman@noaa.gov). The report must include the 
same information identified in the Condition 8(a) above. Activities may 
continue while NMFS reviews the circumstances of the incident. NMFS 
will work with the City of San Diego to determine whether modifications 
in the activities are appropriate.

Reporting an Injured or Dead Marine Mammal Not Related to the 
Activities

    In the event that the City of San Diego discovers an injured or 
dead marine mammal, and the lead PSO determines that the injury or 
death is not associated with or related to the activities authorized in 
Condition 2 to 4 of this Authorization (e.g., previously wounded 
animal, carcass with moderate to advanced decomposition, or scavenger 
damage), the City of San Diego shall report the incident to the Chief 
of the Permits and Conservation Division, Office of Protected 
Resources, NMFS, at 301-427-8401, and/or by email to 
Jolie.Harrison@noaa.gov and Howard.Goldstein@noaa.gov, and the NMFS 
West Coast Regional Office (1-866-767-6114) and/or by email to the West 
Coast Regional Stranding Coordinator (Justin.Greenman@noaa.gov), within 
24 hours of the discovery. The City of San Diego shall provide 
photographs or video footage (if available) or other documentation of 
the stranded animal sighting to NMFS and the Marine Mammal Stranding 
Network. Activities may continue while NMFS reviews the circumstances 
of the incident.
    9. A copy of this Authorization must be in the possession of all 
contractors and PSOs operating under the authority of this Incidental 
Harassment Authorization.

Request for Public Comments

    NMFS requests comment on our analysis, the draft authorization, and 
any other aspect of the preliminary determinations and notice of the 
proposed IHA for the City of San Diego's construction activities at the 
La Jolla Children's Pool Lifeguard Station. Please include with your 
comments any supporting data or literature citations to help inform our 
final decision on the City of San Diego's request for an MMPA 
authorization. Concurrent with the publication of this notice in the 
Federal Register, NMFS is forwarding copies of this application to the 
Marine Mammal Commission and its Committee of Scientific Advisors.

     Dated: February 4, 2014.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2014-02893 Filed 2-10-14; 8:45 am]
BILLING CODE 3510-22-P