Takes of Marine Mammals Incidental to Specified Activities; Construction Activities at the Children's Pool Lifeguard Station at La Jolla, California, 32699-32714 [2014-13213]
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Federal Register / Vol. 79, No. 109 / Friday, June 6, 2014 / Notices
FMU for which the ACL has been
exceeded, are implemented beginning
on December 31st of the appropriate
year and extending backwards in the
year for the number of days necessary to
achieve the required reduction in
landings. Fishers have expressed to the
Council that the timing of these closures
results in negative socio-economic
impacts. To address this issue, the
Council is proposing to develop a
mechanism that allows them and NMFS
to establish closure dates other than the
standard end of the year closures in the
event of an overage of the ACL for a
specific group of species. There are
several approaches that the Council
could consider to evaluate and
eventually establish a mechanism to
guide the selection of AM-based
seasonal closures:
Default AM-Closure Date—No Action
Accountability measure-based
closures would continue to be
implemented beginning on December
31st of the appropriate year and
extending backwards in the year for the
number of days necessary to achieve the
required reduction in landings.
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‘‘Customized’’ Approach/Mechanism
Change the default AM-closure date
(closures start from December 31st going
backwards). This procedure to set the
timing of the closures would consist of
performing an analysis every year for
those units that exceeded the ACL over
the average of a chosen number of years,
and choosing the best date to close the
season for the next year based on that
specific analysis.
‘‘Upfront’’ Timing Approach (PreDetermined AM-Based Closure Dates)
This approach would also change the
default AM-closure date but in a
different way than the ‘‘Customized’’
Process/Mechanism. This approach
would consist of a one-time predetermination and establishment of
closure dates (e.g., start or end date) for
all Council FMUs (or alternatively apply
the analysis to a selected group of
FMUs) and implement through
rulemaking. The start or end date would
not have to be the same for each FMU.
The goal of this Scoping Hearing is to
allow the public to comment on the
options listed above and to provide
alternative options not yet considered
by the Council and NMFS, considering
the goals of remaining within the ACL
and lessening the socio-economic
impact of AMs.
Written comments can be sent to the
Council not later than July 25th, 2013,
by regular mail to the address below, or
via email to graciela_cfmc@yahoo.com.
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Special Accommodations
These meetings are physically
accessible to people with disabilities.
For more information or request for sign
language interpretation and other
auxiliary aids, please contact Mr.
´
Miguel A. Rolon, Executive Director,
Caribbean Fishery Management Council,
˜
270 Munoz Rivera Avenue, Suite 401,
San Juan, Puerto Rico, 00918–1903,
telephone: (787) 766–5926, at least 5
days prior to the meeting date.
Dated: June 3, 2014.
Tracey L. Thompson,
Acting Deputy Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2014–13236 Filed 6–5–14; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
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Administration
RIN 0648–XD022
Takes of Marine Mammals Incidental to
Specified Activities; Construction
Activities at the Children’s Pool
Lifeguard Station at La Jolla, California
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; issuance of an Incidental
Harassment Authorization (IHA).
AGENCY:
In accordance with the
Marine Mammal Protection Act
(MMPA), notification is hereby given
that NMFS has issued an IHA to the City
of San Diego to take small numbers of
marine mammals, by Level B
harassment, incidental to construction
activities at the Children’s Pool
Lifeguard Station in La Jolla, California.
DATES: Effective June 28, 2014 through
June 27, 2015.
ADDRESSES: A copy of the IHA and the
application are available by writing to
Jolie Harrison, Supervisor, Incidental
Take Program, Permits and
Conservation Division, Office of
Protected Resources, National Marine
Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910 or by
telephoning the contacts listed below
(see FOR FURTHER INFORMATION CONTACT).
An electronic 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
SUMMARY:
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32699
cited in this notice, including the IHA
application, may also 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
Sections 101(a)(5)(A) and (D) of the
MMPA (16 U.S.C. 1361 et seq.), directs
the Secretary of Commerce (Secretary)
to allow, upon request, the incidental,
but not intentional, taking of small
numbers of marine mammals, 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 either
regulations are issued or, if the taking is
limited to harassment, a notice of a
proposed authorization is provided to
the public for review.
Authorization for the incidental
takings shall be granted if NMFS finds
that the taking will have a negligible
impact on the species or stock(s), will
not have an unmitigable adverse impact
on the availability of the species or
stock(s) for subsistence uses (where
relevant), and if the permissible
methods of taking and requirements
pertaining to the mitigation, monitoring,
and reporting of such takings are set
forth. NMFS has defined ‘‘negligible
impact’’ in 50 CFR 216.103 as ‘‘* * * an
impact resulting from the specified
activity that cannot be reasonably
expected to, and is not reasonably likely
to, adversely affect the species or stock
through effects on annual rates of
recruitment or survival.’’
Except with respect to certain
activities not pertinent here, the MMPA
defines ‘‘harassment’’ as: Any act of
pursuit, torment, or annoyance which (i)
has the potential to injure a marine
mammal or marine mammal stock in the
wild [Level A harassment]; or (ii) has
the potential to disturb a marine
mammal or marine mammal stock in the
wild by causing disruption of behavioral
patterns, including, but not limited to,
migration, breathing, nursing, breeding,
feeding, or sheltering [Level B
harassment].
Summary of Request
On November 26, 2013, NMFS
received an application from the City of
San Diego, Engineering and Capital
Projects Department, requesting an IHA
for the taking of marine mammals
incidental to construction activities.
NMFS determined that the IHA
application was adequate and complete
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on November 26, 2013. NMFS
published a notice making preliminary
determinations and proposing to issue
an IHA on February 11, 2014 (79 FR
8160). The notice initiated a 30 day
public comment period.
The City of San Diego will undertake
the construction activities between June
2014 and June 2015 at the Children’s
Pool Lifeguard Station in La Jolla,
California. In-air noise generated from
equipment used during the construction
activities is likely to result in the take
of marine mammals. The requested IHA
will 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.
NMFS issued the City of San Diego an
IHA in 2013 (78 FR 40705, July 8, 2013)
for demolition and construction
activities at the Children’s Pool
Lifeguard Station that were scheduled to
be completed in 2013. Because the
construction activities were subject to
delays (e.g., nesting migratory birds,
unexpected drainage pipes, unexpected
demolition and construction planning,
etc.) and could not be completed by
December 15, 2013, the City of San
Diego requested a renewal of the 2013
IHA for an additional year. 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 Specified Activity
Overview
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The City of San Diego plans to
conduct construction activities at the
Children’s Pool Lifeguard Station in La
Jolla, CA in order to meet the needs of
the lifeguards at Children’s Pool and the
demand for lifeguard services. 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 in 2013 and
construction of the new lifeguard station
is expected to be completed in 2014.
Dates and Duration
The City of San Diego is planning to
begin/resume the 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
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December 15, 2014. The City of San
Diego and NMFS are requiring a
moratorium on all construction
activities during harbor seal pupping
and weaning (i.e., December 15th to
May 30th; see page 5 of the Mitigated
Negative Declaration in the IHA
application). Therefore, work on this
project can only be performed between
June 1st and December 14th of any year.
Planned 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’’
included in the IHA application and
local ordinances. As a modification to
the original IHA, the City of San Diego
has requested that planned construction
activities be allowed on weekends (i.e.,
Saturday and Sunday to ensure
completion of the project during 2014.
The exact dates of the planned activities
depend on logistics and scheduling. The
IHA is valid through June 2015 to allow
for construction delays.
Specific Geographic Region
The La Jolla Children’s Pool Lifeguard
Station is located at 827 1⁄2 Coast
Boulevard, La Jolla, CA 92037
(32°50′50.02″ North, 117°16′42.8″ West).
The locations and distances (in ft) from
the 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.
Detailed Description of the Specified
Activities
The Children’s Pool was created in
1931 by building a breakwater wall
which created a protected pool for
swimming. Although partially filled
with sand, the Children’s Pool still has
open water for swimming and 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, and
for 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
annually, and lifeguards have taken an
average of 8,147 preventive actions and
86 water rescues annually (CASA, 2010;
2011; 2012).
The previous lifeguard facility at
Children’s Pool, built in 1967, was old,
deteriorating from saltwater intrusion,
and no longer served the needs of the
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lifeguard staff or the beach-going public.
The structure was condemned on
February 22, 2008 due to its deteriorated
condition and lack of structural
integrity. Because the existing building
was no longer viable, a temporary
lifeguard tower was moved in. However,
a new lifeguard station is required to
meet the needs of the lifeguards and the
demand for lifeguard services.
The overall project includes the
demolition of the existing lifeguard
station and construction of a new, threestory, lifeguard station on the same site.
Demolition of the existing lifeguard
station was completed in 2013 and
construction of the new lifeguard station
is expected to be completed in 2014.
The new lifeguard facility is in an
optimal location to provide lifeguard
service to the community. The new,
three-story, building will contain a
lower level with beach access level
public restrooms and showers, lifeguard
lockers, and sewage pump room; a
second level with two work stations,
ready/observation room, kitchenette,
restroom, and first aid station; and a
third ‘‘observation’’ level with 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 will be located along the north end
of the lower level. The walls will be
designed for a minimum design life of
50 years and will not be undermined
from ongoing coastal erosion. The walls
will not be readily viewed from Coast
Boulevard, the public sidewalks or the
surrounding community. Enhanced
paving, seating and viewing space,
drinking fountains, adapted
landscaping, and water efficient
irrigation will also be included.
The City of San Diego has divided the
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.
Demolition and construction of the
new lifeguard station was estimated to
take approximately 7 months (148
actual demolition and construction
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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. The
City of San Diego completed phases 1 to
4 by December 2013. Construction of
phases 5 to 9 will commence in June
2014, thereby necessitating a renewal of
the previous IHA.
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) provides a
detailed summary on phases 1 to 4 (i.e.,
mobilization and temporary facilities,
demolition and site clearing, site
preparation and utilities, and building
foundation). Phases 5 to 9 include
(phases overlap in time):
(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.
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(9) Final inspection, demobilization:
System testing, remove construction
equipment, inspection, and corrections.
Equipment—truck, and hand/power
tools.
Timeframe—Approximately 41 days.
This phase will be completed in 2014
and has a maximum source level of 100
dB.
The exact dates of the planned
activities depend on logistics and
scheduling.
Sound levels during all phases of the
project will not exceed 110 dB re 20 mPa
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 published or
manufacturers’ 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
project site. Operation of the equipment
is the primary activity within the range
of construction activities that is likely to
affect marine mammals by potentially
exposing them to in-air (i.e., airborne or
sub-aerial) noise. During the working
day, the City of San Diego estimates
there will be sound source levels above
90 dB re 20 mPa, including 65 days of
100 to 110 dB re 20 mPa at the
construction site.
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 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 mPa 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/calculatordistance.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
construction activities.
Additional details regarding the
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.
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Comments and Responses
A notice of preliminary
determinations and proposed IHA for
the City of San Diego’s construction
activities was published in the Federal
Register on February 11, 2014 (79 FR
8160). During the 30-day public
comment period, NMFS received
comments from the Marine Mammal
Commission (Commission) and a private
citizen. The comments are posted online
at: https://www.nmfs.noaa.gov/pr/
permits/incidental.htm. Following are
the substantive comments and NMFS’s
responses:
Comment 1: The Commission
considers the proposed monitoring and
mitigation measures sufficient to avoid
significant impacts on harbor seals,
California sea lions, and northern
elephant seals that might occur in the
proposed project area. The Commission
recommends that NMFS issue the IHA,
subject to inclusion of the proposed
monitoring and mitigation measures.
Response: NMFS concurs with the
Commission’s recommendation and has
issued the IHA to the City of San Diego.
Comment 2: The Commission
commends the City of San Diego for
conducting in-situ measurements of inair sound levels during last year’s
activities. To better assess in-air sound
propagation and source levels of the
specific construction activities during
2014, the Commission suggests that the
City of San Diego note the distance from
the sound meter to each soundproducing activity when conducting
sound measurements.
Response: NMFS has included this
recommendation as a monitoring and
reporting measure in the IHA (see
‘‘Mitigation’’ and ‘‘Monitoring and
Reporting’’ sections below for more
information).
Comment 3: A private citizen states
that pinnipeds will be killed by the
proposed activities and believes that the
proposed IHA should be denied to the
City of San Diego.
Response: As described in detail in
the Federal Register notice for the
proposed IHA (79 FR 8150, February 11,
2014) and this document, NMFS has
determined that the City of San Diego’s
construction activities at the Children’s
Pool Lifeguard Station in La Jolla, CA,
will not cause injury, serious injury, or
mortality to marine mammals. The
required monitoring and mitigation
measures that the City of San Diego will
implement during the construction
activities will further reduce the adverse
effects on marine mammals to the
lowest level practicable. NMFS
anticipates only behavioral disturbance
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to occur during the conduct of the
construction activities.
Description of Marine Mammals in the
Specified Geographic Area of the
Specified Activity
Three species of pinnipeds are known
to or could occur in the Children’s Pool
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. Therefore,
these three species are likely to be
exposed to effects of the specified
activities. A variety of other marine
mammals have on occasion been
reported in the coastal waters off
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 immediate
action area of the Children’s Pool beach.
Therefore, NMFS does not expect, and
is not authorizing, incidental take of
other marine mammal species from the
specified activities. Table 1 below
identifies the cetacean and pinnipeds
species, their habitat, and conservation
status in the nearshore area of the
general region of the project area.
TABLE 1—THE HABITAT, ABUNDANCE, AND CONSERVATION STATUS OF MARINE MAMMALS INHABITING THE GENERAL
REGION OF THE ACTION AREA IN THE PACIFIC OCEAN OFF THE SOUTHERN COAST OF CALIFORNIA
Species
Habitat
Occurrence
Range
Best population estimate (minimum) 1
ESA 2
19,126 (18,107) .......
DL—Eastern Pacific
stock.
EN—Western Pacific
stock.
NL EN—Southern
NC D—Southern
resident population.
Resident and AT1
Transient populations.
NL ............................ NC.
MMPA 3
Mysticetes
Gray whale
(Eschrichtius
robustus).
Coastal and shelf .....
Transient during season migrations.
North Pacific Ocean,
Gulf of California
to Arctic—Eastern
North Pacific stock.
NC—Eastern North
Pacific stock
D—Western North
Pacific stock.
Odontocetes
Killer whale (Orcinus
orca).
Widely distributed ....
Varies on inter-annual basis.
Cosmopolitan ...........
354 (354)—West
Coast Transient
stock.
Bottlenose dolphin
(Tursiops truncatus).
Offshore, inshore,
coastal, estuaries.
Limited, small population within 1 km
of shore.
323 (290)—California
Coastal stock.
Long-beaked common
dolphin (Delphinus
capensis).
Inshore .....................
Common, more
inshore distribution, year-round
presence.
Tropical and temperate waters between 45° North
and South.
Nearshore and tropical waters.
107,016 (76,224)—
California stock.
NL ............................
NC.
Coastal temperate to
polar regions in
Northern Hemisphere.
Eastern and Central
North Pacific—
Alaska to Mexico.
Eastern North Pacific
Ocean—Alaska to
Mexico.
North Pacific
Ocean—Central
California to Korea.
30,196 (26,667)—
California stock.
NL ............................
NC.
124,000 (74,913)—
California breeding
stock.
296,750 (153,337)—
U.S. stock.
NL ............................
NC.
NL ............................
NC.
D.
North Pacific
Ocean—Mexico to
Japan.
California to Baja
California, Mexico.
12,844 (6,722)—California stock.
DL—Eastern U.S.
stock.
EN—Western U.S.
stock.
NL ............................
T ...............................
D.
Pinnipeds
Pacific harbor seal
(Phoca vitulina
richardii).
Coastal .....................
Common ..................
Northern elephant seal
(Mirounga
angustirostris).
California sea lion
(Zalophus
californianus).
Steller sea lion
(Eumetopias
jubatus).
Coastal, pelagic
Common ..................
when not migrating.
Coastal, shelf ...........
Common ..................
Coastal, shelf ...........
Rare .........................
Northern fur seal
Pelagic, offshore ......
(Callorhinus ursinus).
Rare .........................
Guadalupe fur seal
(Arctocephalus
townsendi).
Rare .........................
Coastal, shelf ...........
72,223 (52,847)—
Eastern U.S. stock.
7,408 (3,028)—Mexico to California.
NC—California stock.
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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-
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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
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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 and
three adult California sea lions and two
juvenile northern elephant seals at the
Children’s Pool.
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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). 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). Of the
known haul-out sites, 14 locations are
rookeries (2 locations have multiple
sites, for a total of 17 sites) on or near
the mainland of California. 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). Harbor seals are one of
the most common and frequently
observed marine mammals along the
coastal environment.
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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). Pacific
harbor seals haul-out year-round on
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. It is
one of the three known haul-out sites for
this species in San Diego County. 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.
The Children’s Pool area 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]). The number of
harbor seals in this area has 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 15.
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
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(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
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 will exceed 250 harbor seals.
Based on monitoring from a camera,
Western Alliance for Nature (WAN)
reported that during the month of May
2013 up to 302 harbor seals were
documented resting on the Children’s
Pool beach at any given time, with
additional harbor seals on the rocks and
in the water (Wan, personal
communication). Almost every day,
except for weekends, over 250
individual harbor seals were present on
the beach. During the months of
September 2012 to January 2013, the
average number of harbor seals on the
beach varied from 83 to 120 animals
before people entered the beach or when
people were behind the rope. During
this same period, when people were on
the beach and/or across the rope, the
average number of harbor seals varied
from 7 to 27. The weather (i.e., wind
and/or rain) and the proximity of
humans to the beach likely affect the
presence of harbor seals on the beach.
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. For example, harbor
seals with red-stained heads and coats,
which are typical of some harbor seals
in San Francisco Bay have been
observed at Children’s Pool, indicating
that seals tagged at other locations and
haul-out sites visit the site. 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
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of very low re-sighting efforts and a
small sample size [10 individuals radiotagged]), 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), 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 a full
species, separate 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). This
species of sea lion is 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. A
genetic analysis of California sea lions
identified five genetically distinct
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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 United States.
The entire California sea lion
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° 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
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 that
survived in Mexico after being nearly
hunted to extinction (Stewart et al.,
1994). Given the very recent derivation
of most rookeries, no genetic
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differentiation would be expected.
However, 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’s
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 of the Specified
Activity on Marine Mammals
This section includes a summary and
discussion of the ways that the types of
stressors associated with the specified
activity (e.g., construction equipment
and activities) have been observed to
impact marine mammals. This
discussion may also include reactions
that we consider to rise to the level of
a take and those that we do not consider
to rise to the level of take (for example,
with acoustics), we may include a
discussion of studies that showed
animals not reacting at all to sound or
exhibiting barely measureable
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avoidance. This section is intended as a
background of potential effects and does
not consider either the specific manner
in which this activity will be carried out
or the mitigation that will be
implemented, or how either of those
will shape the anticipated impacts from
this specific activity. The ‘‘Estimated
Take by Incidental Harassment’’ section
later in this document will include a
quantitative analysis of the number of
individuals that are expected to be taken
by this activity. The ‘‘Negligible Impact
Analysis’’ section will include the
analysis of how this specific activity
will impact marine mammals and will
consider the content of this section, the
‘‘Estimated Take by Incidental
Harassment’’ section, the ‘‘Mitigation’’
section, and the ‘‘Anticipated Effects on
Marine Mammal Habitat’’ section to
draw conclusions regarding the likely
impacts of this activity on the
reproductive success or survivorship of
individuals and from that on the
affected marine mammal populations or
stocks.
When considering the influence of
various kinds of sound on the marine
environment, it is necessary to
understand that different kinds of
marine life are sensitive to different
frequencies of sound. Based on available
behavioral data, audiograms have been
derived using auditory evoked
potentials, anatomical modeling, and
other data, Southall et al. (2007)
designate ‘‘functional hearing groups’’
for marine mammals and estimate the
lower and upper frequencies of
functional hearing of the groups. The
functional groups and the associated
frequencies are indicated below (though
animals are less sensitive to sounds at
the outer edge of their functional range
and most sensitive to sounds of
frequencies within a smaller range
somewhere in the middle of their
functional hearing range):
• Low-frequency cetaceans (13
species of mysticetes): Functional
hearing is estimated to occur between
approximately 7 Hz and 30 kHz;
• Mid-frequency cetaceans (32
species of dolphins, six species of larger
toothed whales, and 19 species of
beaked and bottlenose whales):
Functional hearing is estimated to occur
between approximately 150 Hz and 160
kHz;
• High-frequency cetaceans (eight
species of true porpoises, six species of
river dolphins, Kogia spp., the
franciscana (Pontoporia blainvillei), and
four species of cephalorhynchids):
Functional hearing is estimated to occur
between approximately 200 Hz and 180
kHz; and
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• Phocid pinnipeds in water:
Functional hearing is estimated to occur
between approximately 75 Hz and 100
kHz;
• Otariid pinnipeds in water:
Functional hearing is estimated to occur
between approximately 100 Hz and 40
kHz.
As mentioned previously in this
document, 3 marine mammal species (0
cetacean and 3 pinniped species) are
likely to occur in the proposed action
area. Of the 3 pinniped species likely to
occur in the City of San Diego’s
proposed action area, 2 are classified as
phocid pinnipeds (i.e., Pacific harbor
seal and northern elephant seal) and, 1
is classified as an otariid pinniped (i.e.,
California sea lion) (Southall et al.,
2007). The City of San Diego requests
authorization for Level B harassment of
these 3 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 construction activities of the
Children’s Pool Lifeguard Station at La
Jolla, CA discussed above. NMFS
considers a species’ functional hearing
group when we analyze the effects of
exposure to sound on marine mammals.
The notice of the proposed IHA (79
FR 8160, February 11, 2014) included a
discussion of the effects of in-air sounds
from construction activities on
pinnipeds, which included tolerance,
behavioral disturbance, and hearing
impairment. NMFS refers readers to the
City of San Diego’s IHA application,
NMFS’s EA for additional information
on the behavioral reactions (or lack
thereof) by all types of marine mammals
to high levels of in-air sounds.
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 ‘‘Mitigation’’ and
‘‘Monitoring and Reporting’’ sections),
which are designed to effect the least
practicable impact on affected marine
mammal species or stocks.
Anticipated Effects on Marine Mammal
Habitat
The rocks and beaches at or near the
Children’s Pool in La Jolla, CA, are
almost exclusively Pacific harbor seal
hauling-out sites. Harbor seals have
been observed hauling-out and
documented giving birth at the
Children’s Pool since the 1990s
(Yochem and Stewart, 1998; Hanan &
Associates, 2004). It is one of the three
known haul-out sites for this species in
San Diego County and is the only
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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.
More information on this population of
Pacific harbor seals can be found in the
‘‘Description of Marine Mammals in the
Specified Geographic Area of the
Specified Activity.’’
The primary anticipated adverse
impacts upon habitat consist of
temporary changes to the in-air acoustic
environment, as detailed in the
proposed IHA notice (79 FR 8160,
February 11, 2014). These changes are
minor, temporary, and limited in
duration to the period of the
construction activities. 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.
All construction activities are beyond
or outside the habitat areas where
harbor seals and other pinnipeds are
found. Visual barriers will 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 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 will 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).
The area of habitat affected is small
and the effects are localized and
temporary; thus there is no reason to
expect any significant reduction in
habitat available for foraging and other
habitat uses. No aspect of the project is
anticipated to have any permanent
effect on the location or use of pinniped
haul-outs or related habitat features in
the area (Hana & Associates, 2011).
Further, the 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 activities is expected by the
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City of San Diego and NMFS to be
quickly restored after construction
activities end and all equipment and
barriers are removed.
For these reasons, NMFS anticipates
that the 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.
Mitigation
In order to issue an Incidental Take
Authorization (ITA) under section
101(a)(5)(D) of the MMPA, NMFS must
prescribe, where applicable, the
permissible methods of taking pursuant
to such activity, and other means of
effecting the least practicable impact on
such species or stock and its habitat,
paying particular attention to rookeries,
mating grounds, and areas of similar
significance, and on the availability of
such species or stock for taking for
certain subsistence uses (where
relevant).
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 haulout area and the pinnipeds. The
timeframe for the rope has been
extended so that it is now present yearround. The construction activities are
planned to occur outside the harbor seal
pupping and weaning periods.
The City of San Diego will implement
the following mitigation measures to
help ensure the least practicable impact
on marine mammals:
(1) Prohibition of construction during
pupping season;
(2) Daily construction timing;
(3) Construction of visual and
acoustic barriers;
(4) Use of Protected Species
Observers;
(5) Establishment of buffer zones; and
(6) Potential abandonment survey.
Visual and acoustic barriers were
constructed in 2013 to mitigate the
effects of the construction activities. 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 sheets of plywood
were stood upright and held up with
two wooden two by fours hinged to the
top of the frame, so they could be
collapsed and moved depending on the
location and need for access by
demolition and construction equipment.
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
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the 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 construction activities for the
project. Once the walls of the lifeguard
station’s building are in place, much of
the 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, and also included several
additional measures in the final IHA (78
FR 40705, July 8, 2013). These included
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 would be
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 originally 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 requirement has been
removed because it is no longer
practicable due to logistics, scheduling
and to allow the planned activities to be
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completed before the next pupping
season.
The activities planned by the
applicant includes a variety of measures
calculated to minimize potential
impacts on marine mammals, including:
Prohibition of Construction During
Pupping Season
Construction shall be prohibited
during the Pacific harbor seal pupping
season (December 15th to May 15th) and
for an additional two weeks thereafter to
accommodate lactation and weaning of
late season pups. Thus, construction
shall be prohibited from December 15th
to June 1st.
Daily Construction Timing
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.
Construction of Visual and Acoustic
Barriers
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.
Protected Species Observers
Trained PSOs will be used 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. More
information about this measure is
contained in the ‘‘Monitoring’’ section
(below).
Establishment of Buffer Zones
The City of San Diego shall establish
buffer zones (i.e., where sound pressure
levels are at or above 90 dB re 20 mPa
for harbor seals and/or at or above 100
dB re 20 mPa 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.
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Potential Abandonment Survey
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
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More information regarding the City
of San Diego’s monitoring and
mitigation measures for the construction
activities at the Children’s Pool
Lifeguard Station can be found in the
IHA application.
Mitigation Conclusions
NMFS carefully evaluated the
applicant’s mitigation measures and
considered a range of other measures in
the context of ensuring that NMFS
prescribes the means of effecting the
least practicable impact on the affected
marine mammal species and stocks and
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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 shutdown 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 haulout 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 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.
Figure 1. 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, which includes the projected
mean as well as the upper 95% and
lower 95% confidence intervals, was
used to estimate harbor seals expected
to be hauled-out by day.
their habitat. NMFS’s evaluation of
potential measures included
consideration of the following factors in
relation to one another:
• The manner in which, and the
degree to which, the successful
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.
Any mitigation measure(s) prescribed
by NMFS should be able to accomplish,
have a reasonable likelihood of
accomplishing (based on current
science), or contribute to the
accomplishment of one or more of the
general goals listed below:
(1) Avoidance or minimization of
injury or death of marine mammals
wherever possible (goals 2, 3, and 4 may
contribute to this goal).
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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 to June 1 through June 27, 2015
to finish the 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 construction
activities.
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(2) A reduction in the numbers of
marine mammals (total number or
number at biologically important time
or location) exposed to received levels
from construction equipment, or other
activities expected to result in the take
of marine mammals (this goal may
contribute to 1, above, or to reducing
harassment takes only).
(3) A reduction in the number of
times (total number or number at
biologically important time or location)
individuals would be exposed to
received levels from construction
equipment, or other activities expected
to result in the take of marine mammals
(this goal may contribute to 1, above, or
to reducing harassment takes only).
(4) A reduction in the intensity of
exposures (either total number or
number at biologically important time
or location) to received levels from
construction equipment, or other
activities expected to result in the take
of marine mammals (this goal may
contribute to a, above, or to reducing the
severity of harassment takes only).
(5) Avoidance of minimization of
adverse effects to marine mammal
habitat, paying special attention to the
food base, activities that block or limit
passage to or from biologically
important areas, permanent destruction
of habitat, or temporary destruction/
disturbance of habitat during a
biologically important time.
(6) For monitoring directly related to
mitigation—an increase in the
probability of detecting marine
mammals, thus allowing for more
effective implementation of the
mitigation.
Based on NMFS’s evaluation of the
applicant’s proposed measures, as well
as other measures considered by NMFS
or recommended by the public, NMFS
has determined that the mitigation
measures provide the means of effecting
the least practicable impact on marine
mammal species or stocks and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance.
Monitoring and Reporting
In order to issue an 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
ITAs 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
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expected to be present in the action
area.
Monitoring measures prescribed by
NMFS should accomplish one or more
of the following general goals:
(1) An increase in the probability of
detecting marine mammals, both within
the mitigation zone (thus allowing for
more effective implementation of the
mitigation) and in general to generate
more data to contribute to the analyses
mentioned below;
(2) An increase in our understanding
of how many marine mammals are
likely to be exposed to levels from
construction equipment that we
associate with specific adverse effects,
such as behavioral harassment, TTS or
PTS;
(3) An increase in our understanding
of how marine mammals respond to
stimuli expected to result in take and
how anticipated adverse effects on
individuals (in different ways and to
varying degrees) may impact the
population, species, or stock
(specifically through effects on annual
rates of recruitment or survival) through
any of the following methods:
• Behavioral observations in the
presence of stimuli compared to
observations in the absence of stimuli
(need to be able to accurately predict
received level, distance from source,
and other pertinent information);
• Physiological measurements in the
presence of stimuli compared to
observations in the absence of stimuli
(need to be able to accurately predict
receive level, distance from the source,
and other pertinent information);
• Distribution and/or abundance
comparisons in times or areas with
concentrated stimuli versus times or
areas without stimuli;
(4) An increased knowledge of the
affected species; and
(5) An increase in our understanding
of the effectiveness of certain mitigation
and monitoring measures.
Monitoring
The City of San Diego 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 San
Diego Council Hearing, December 14,
2011) to all public concerns.
The monitoring plan involves
surveying prior to construction
activities, monitoring during
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construction activities by NMFSapproved PSOs with high-resolution
binoculars and handheld digital sound
level meters (measuring devices), and
post-construction monitoring. The City
of San Diego will include sound
measurements at and near the
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 construction activities.
During the construction activities,
monitoring shall assess behavior and
potential behavioral responses to
construction noise and activities. PSOs
will observe the construction activities
from a station along the breakwater wall
and from the base of the cliff below the
construction area. PSOs will be on site
approximately 30 minutes before the
start of construction activities and will
remain on site until 30 minutes after
activities have ceased. Visual digital
recordings and photographs shall be
used to document individuals and
behavioral responses to construction.
The City of San Diego (i.e., PSOs) 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.’’
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 requirements in
the Mitigated Negative Declaration,
which states that ‘‘the biologist shall
document field activity via the
Consultant Site Visit Record. The
Consultant Site Visit Record shall be
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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. Finally, 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.
NMFS notes that 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). The
City of San Diego has stated that there
is no suitable place to mount the camera
at the construction site. Therefore, the
City of San Diego cannot do periodic
checks using the webcam for monitoring
purposes as required by the 2013 IHA.
However, 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 have been able to see visual
evidence of Level B harassment but
probably would not have been able to
distinguish between harassment from
construction activities and harassment
from the public since the camera had a
limited scope and only showed 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 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
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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
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 acoustic effects
from 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 inair noise generating activities, and
description of the activities;
• Distances to all marine mammals
relative to the sound source;
• Distances from the sound meter to
each sound-producing activity when
conducting sound measurements;
• 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
construction will be included in the
biological monitoring notes to be
submitted. A final report summarizing
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32709
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.
Reporting
The City of San Diego will 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 will 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, 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 will be considered
to be the final report.
While the IHA does 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
if a dead stranded pinniped is found 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.
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 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
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Activities may continue while NMFS
reviews the circumstances of the
incident. NMFS will work with the City
of San Diego to determine whether
modification of the activities is
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 (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,
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.
Criterion
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Protected Resources, NMFS, at 301–
427–8401 and/or by email to
Jolie.Harrison@noaa.gov,
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 the action necessary
to minimize the likelihood of further
prohibited take and ensure MMPA
compliance. The City of San Diego may
not resume its activities until notified
by NMFS via letter, email, or 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 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,
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.
movements, and flushes) that could be
attributed to demolition and
construction activities (5,095 takes), the
general public (8,639 takes), and other
sources (1,939 takes). As of April 15,
2014, at least 60 harbor seal pups
(including 2 still births) have been born
at the Children’s Pool and there has
been no indication of abandonment. In
addition to the Pacific harbor seal
sightings, PSOs recorded 11 sightings of
cetaceans (gray whales and bottlenose
dolphins), 4 sightings of California sea
lions (1 juvenile, 3 adult), and 2
northern elephant seals (both juveniles)
at the Children’s Pool.
Hanan & Associates recorded mean
in-air sound levels of 69.2 dB re 20 mPa
(range of 55.6 to 93.7 dB re 20 mPa)
during non-demolition and construction
activities and 70.3 dB re 20 mPa (range
of 50.7 to 103.1 dB re 20 mPa) during
demolition and construction activities.
During 2013, measured sound levels
from the demolition equipment reaching
the pinnipeds did not exceed
approximately 90 dB at the haul-out
area closest to the demolition and
construction activities, nor did they
exceed a peak of about 83 dB re 20 mPa
at the mean hauling-out distance (30.5
m).
More information on the monitoring
results from the City of San Diego’s
previous demolition and construction
activities at the La Jolla Children’s Pool
Lifeguard Station can be found in the
final monitoring report.
Criterion Definition
Monitoring Results From Previously
Authorized Activities
Hanan & Associates, Inc., on behalf of
the City of San Diego, conducted marine
mammal and in-air sound monitoring at
six locations during demolition and
construction activities at the Children’s
Pool Lifeguard Station in La Jolla,
California from June 3, 2013 to February
12, 2014. Demolition and construction
activities began on July 10, 2013 and
were halted for the Pacific harbor seal
pupping season (December 15, 2013 to
June 1, 2014). During 115 days of visual
and acoustic observations, Hanan &
Associates counted a total of 61,631
Pacific harbor seals and 26,037 people.
During the 2013 demolition and
construction activities, Hanan &
Associates observed a total of 15,673
takes by Level B harassment (i.e., alerts,
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].
NMFS’s current underwater and in-air
acoustic exposure criteria:
Threshold
Underwater Impulsive (Non-Explosive) Sound
Level A harassment (injury) ...............................
Permanent threshold shift (PTS) (Any level
above that which is known to cause TTS).
Level B harassment ...........................................
Level B harassment ...........................................
Behavioral disruption (for impulsive noise) ......
Behavioral disruption (for continuous noise) ....
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180 dB re 1 μPa-m (root means square [rms])
(cetaceans) 190 dB re 1 μPa-m (rms)
(pinnipeds).
160 dB re 1 μPa-m (rms).
120 dB re 1 μPa-m (rms).
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Criterion
Criterion Definition
Threshold
In-Air Sound
NA.
90 dB re 20 μPa (harbor seals) 100 dB re 20
μPa (all other pinniped species) NA
(cetaceans).
behavioral criteria for take by Level B
harassment.
With 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. An
unknown portion of the incidental takes
will 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.
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 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
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
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EN06JN14.001
NA .....................................................................
Behavioral disruption ........................................
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
construction project at the Children’s
Pool. No takes by injury (Level A
harassment), serious injury, or mortality
are expected. NMFS will consider
pinnipeds behaviorally reacting to the
construction activities by 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 movements by individuals as
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Level A harassment ...........................................
Level B harassment ...........................................
32712
Federal Register / Vol. 79, No. 109 / Friday, June 6, 2014 / Notices
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 will equate to 600, 2, and 1
individuals, respectively, being exposed
multiple times. More information on the
number of takes authorized, and the
approximate percentage of the stock for
the three species in the action area can
be found in Table 2 (below).
TABLE 2—SUMMARY OF THE AUTHORIZED INCIDENTAL TAKE BY LEVEL B HARASSMENT OF PINNIPEDS FOR THE CITY OF
SAN DIEGO’S CONSTRUCTION ACTIVITIES GENERATING IN-AIR NOISE AT THE CHILDREN’S POOL LIFEGUARD STATION
IN LA JOLLA, CA
Species
Take
authorization
(number of
exposures)
Estimated
number of
individuals
taken
Abundance
Approximate
percentage of
estimated
stock
(individuals)
Pacific harbor seal .................
10,000
600
30,196—California stock ......
1.98
California sea lion ..................
Northern elephant seal ..........
100
25
2
1
296,750—U.S. stock .............
124,000—California breeding
stock.
<0.01
<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 information for IHA permitting
in future projects. Potential additional
mitigation (other than what is already
required) 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.
Impact on Availability of Affected
Species or Stock for Taking for
Subsistence Uses
Section 101(a)(5)(D) of the MMPA
requires NMFS to determine that the
authorization will not have an
unmitigable adverse effect on the
availability of marine mammal species
or stocks for subsistence use. There are
not relevant subsistence uses of marine
mammals implicated by this action.
Therefore, NMFS has determined that
the total taking of affected species or
stocks will not have an unmitigable
adverse impact on the availability of
such species or stocks for subsistence
purposes.
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Analysis and 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
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finding is based on the lack of likely
adverse effects on annual rates of
recruitment or survival (i.e., populationlevel 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; 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 the 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 construction
activities, and none are authorized by
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Population trend
Increased in California 1981
to 2004.
Increasing.
Increasing through 2005,
now stable.
NMFS. The planned activities are not
expected to result in the alteration of
reproductive behaviors, and the
potentially affected species will be
subjected to only temporary and minor
behavioral impacts.
Behavioral disturbance may
potentially occur incidental to the
visual presence of humans and
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 AcevedoGutierrez, 2007; Jansen et al., 2006;
Hanan & Associates, 2011). Therefore,
there is a high likelihood that many of
the harbor seals present during the
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).
As discussed in detail above, the
project scheduling avoids sensitive life
stages for Pacific harbor seals. Planned
project activities producing in-air noise
will commence in June and end by
December 15. The commencement date
occurs after the end of the pupping
season, affords additional time to
accommodate lactation and weaning of
season pups, and takes into account
periods of lowest haul-out occurrence.
The end date falls approximately two
weeks prior to January 1, the time after
which most births occur, providing
protection for pregnant and nursing
harbor seals that may give birth before
January 1.
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Federal Register / Vol. 79, No. 109 / Friday, June 6, 2014 / Notices
Table 2 of this document outlines the
number of Level B harassment takes that
are anticipated as a result of these
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
required mitigation, monitoring, and
reporting measures that will be
implemented to minimize impacts to
marine mammals.
The Children’s Pool is one of the three
known haul-out sites for Pacific harbor
seal in San Diego County and the only
rookery in San Diego County and the
only mainland rookery on the U.S. west
coast for this species between the border
of Mexico and Point Mugu in Ventura
County, CA. For the other marine
mammal species that may occur within
the action area (i.e., California sea lions
and northern elephant seals), 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, Pacific harbor seals have been
hauling-out at Children’s Pool during
the year for many years (including
during pupping season and while
females are pregnant) while being
exposed to anthropogenic sound sources
such as vehicle traffic, human voices,
etc. and other stimuli from human
presence. While studies have shown the
types of sound sources used during the
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. The
Pacific harbor seals have repeatedly
hauled-out to pup over many years and
the NMFS Stock Assessment Reports
(NMFS, 2011) for this stock have shown
that the population is increasing and is
considered stable. Additionally, the
construction activities will increase
sound levels in the environment in a
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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.
NMFS’s practice has been to apply the
90 dB re 20 mPa and 100 dB re 20 mPa
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 mPa (peak
flat) as the potential threshold for injury
from in-air noise for all pinnipeds. No
in-air sounds from construction
activities will exceed 110 dB at the
source and no measured sounds
approached that sound level in 2013.
Of the 3 marine mammal species
under NMFS jurisdiction that may or
are known to likely occur in the 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
action area. To protect these animals
(and other marine mammals in the
action area), the City of San Diego shall
schedule construction activities with
highest sound levels 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, the activity is not expected
to impact rates of recruitment or
survival.
Although behavioral modifications,
including temporarily vacating the area
during the 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 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
construction activities, the requirement
to implement mitigation measures (e.g.,
prohibiting construction activities
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32713
during pupping season, scheduling
operations to periods of the lowest haulout 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 activity to the degree
that will have a negligible impact on the
species or stocks in the action area.
Based on the analysis contained
herein of the likely effects of the
specified activity on marine mammals
and their habitat, and taking into
consideration the implementation of the
proposed monitoring and mitigation
measures, NMFS finds that the total
marine mammal take from the City of
San Diego’s activities will have a
negligible impact on the affected marine
mammal species or stocks.
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 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
will 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 has determined, provided that
the aforementioned mitigation and
monitoring measures are implemented,
that the impact of the 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.
Based on the analysis contained herein
of the likely effects of the specified
activity on marine mammals and their
habitat, and taking into consideration
the implementation of the mitigation
and monitoring measures, NMFS
preliminarily finds that small numbers
of marine mammals will be taken
relative to the populations of the
affected species or stocks. See Table 2
for the authorized take numbers of
marine mammals.
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32714
Federal Register / Vol. 79, No. 109 / Friday, June 6, 2014 / Notices
Endangered Species Act
NMFS (Permits and Conservation
Division) has determined that an ESA
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 planned action will not affect
ESA-listed species.
National Environmental Policy Act
Dated: May 30, 2014.
Perry F. Gayaldo,
Deputy Director, Office of Protected
Resources, National Marine Fisheries Service.
[FR Doc. 2014–13213 Filed 6–5–14; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Telecommunications and
Information Administration
[Docket No. 140514424–4424–01]
wreier-aviles on DSK5TPTVN1PROD with NOTICES
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. Based on the
analysis in the EA and the underlying
information in the record, including the
IHA application, proposed IHA, and
public comments, NMFS prepared and
signed a Finding of No Significant
Impact (FONSI) determining that
preparation of an Environmental Impact
Statement was not required. The FONSI
was signed on June 28, 2013 prior to the
issuance of the IHA for the City of San
Diego’s activities from June 2013 to June
2014. The currently planned
construction activities that will be
covered by the IHA from June 2014 to
June 2015 are similar to the demolition
and construction activities described in
the 2013 EA. NMFS has reviewed CEQ’s
regulations and has determined that it is
not necessary to supplement the 2013
EA because the effects of this IHA fall
within the scope of those documents
and do not require further
supplementation. Based on the public
comments received in response to the
publication in the Federal Register
notice and proposed IHA, NMFS has
reaffirmed its FONSI.
Authorization
NMFS has issued an IHA to the City
of San Diego for conducting
construction activities at the La Jolla
Children’s Pool Lifeguard Station,
provided the previously mentioned
mitigation, monitoring, and reporting
requirements are incorporated.
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RIN 0660–XC010
Big Data and Consumer Privacy in the
Internet Economy
National Telecommunications
and Information Administration, U.S.
Department of Commerce.
ACTION: Request for Public Comment.
AGENCY:
The National
Telecommunications and Information
Administration (‘‘NTIA’’) is requesting
comment on ‘‘big data’’ developments
and how they impact the Consumer
Privacy Bill of Rights.
DATES: Comments are due on or before
5 p.m. Eastern Time on August 5, 2014.
ADDRESSES: Written comments may be
submitted by email to privacyrfc2014@
ntia.doc.gov. Comments submitted by
email should be machine-searchable
and should not be copy-protected.
Written comments also may be
submitted by mail to the National
Telecommunications and Information
Administration, U.S. Department of
Commerce, 1401 Constitution Avenue
NW., Room 4725, Attn: Privacy RFC
2014, Washington, DC 20230.
Responders should include the name of
the person or organization filing the
comment, as well as a page number, on
each page of their submissions. All
comments received are a part of the
public record and will generally be
posted to https://www.ntia.doc.gov/
category/internet-policy-task-force
without change. All personal identifying
information (for example, name,
address) voluntarily submitted by the
commenter may be publicly accessible.
Do not submit Confidential Business
Information or otherwise sensitive or
protected information. NTIA will accept
anonymous comments.
FOR FURTHER INFORMATION CONTACT: John
Morris, National Telecommunications
and Information Administration, U.S.
Department of Commerce, 1401
Constitution Avenue NW., Room 4725,
Washington, DC 20230; telephone (202)
482–1689; email jmorris@ntia.doc.gov.
Please direct media inquiries to NTIA’s
Office of Public Affairs, (202) 482–7002.
SUMMARY:
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SUPPLEMENTARY INFORMATION:
Background: In January 2014,
President Obama asked Counselor to the
President John Podesta to lead a team of
advisors, including Secretary of
Commerce Penny Pritzker, Secretary of
Energy Ernest Moniz, Office of Science
and Technology Policy Director John
Holdren, and National Economic
Council Director Jeffrey Zients, in
conducting a 90-day study examining
how ‘‘big data’’ will transform the way
individuals live and work and impact
the relationships among government,
citizens, businesses, and consumers.
On May 1, 2014, the working group
published its findings and
recommendations as Big Data: Seizing
Opportunities, Preserving Values (the
‘‘Big Data Report’’).1 The Big Data
Report notes that big data analysis can
‘‘become an historic driver of progress,
helping our nation perpetuate the civic
and economic dynamism that has long
been its hallmark.’’ 2 At the same time,
big data ‘‘raises considerable questions
about how our framework for privacy
protection applies in a big data
ecosystem’’ and has the potential to
‘‘eclipse longstanding civil rights
protections in how personal information
is used in housing, credit, employment,
health, education, and the
marketplace.’’ 3
The Big Data Report specifically
addresses privacy and the
Administration’s Consumer Privacy Bill
of Rights.4 The Big Data Report notes
that:
As President Obama made clear in
February 2012, the Consumer Privacy Bill of
Rights and the associated Blueprint for
Consumer Privacy represent ‘‘a dynamic
model of how to offer strong privacy
protection and enable ongoing innovation in
new information technologies.’’ The
Consumer Privacy Bill of Rights is based on
the Fair Information Practice Principles.
1 Executive Office of the President, Big Data:
Seizing Opportunities, Preserving Values (the ‘‘Big
Data Report’’) (May 2014), available at: https://
www.whitehouse.gov/sites/default/files/docs/big_
data_privacy_report_may_1_2014.pdf.
2 Big Data Report, Letter to the President from
John Podesta, Counselor to the President; Penny
Pritzker, Secretary of Commerce; Ernest J. Moniz,
Secretary of Energy; John Holdren, Director, Office
of Science and Technology Policy; and Jeffrey
Zients, Director, National Economic Council (May
1, 2014).
3 Id.
4 In February 2012, the White House released
Consumer Data Privacy in a Networked World: A
Framework for Protecting Privacy and Promoting
Innovation in the Global Digital Economy (the
‘‘Privacy Blueprint’’), available at: https://
www.whitehouse.gov/sites/default/files/privacyfinal.pdf. The Privacy Blueprint includes the
Consumer Privacy Bill of Rights, which applies
seven Fair Information Practice Principles to
contemporary commercial data practices. The
Blueprint also calls for Congress to pass baseline
consumer privacy legislation.
E:\FR\FM\06JNN1.SGM
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Agencies
[Federal Register Volume 79, Number 109 (Friday, June 6, 2014)]
[Notices]
[Pages 32699-32714]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-13213]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XD022
Takes of Marine Mammals Incidental to Specified Activities;
Construction Activities at the Children's Pool Lifeguard Station at La
Jolla, California
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an Incidental Harassment Authorization
(IHA).
-----------------------------------------------------------------------
SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA),
notification is hereby given that NMFS has issued an IHA to the City of
San Diego to take small numbers of marine mammals, by Level B
harassment, incidental to construction activities at the Children's
Pool Lifeguard Station in La Jolla, California.
DATES: Effective June 28, 2014 through June 27, 2015.
ADDRESSES: A copy of the IHA and the application are available by
writing to Jolie Harrison, Supervisor, Incidental Take Program, Permits
and Conservation Division, Office of Protected Resources, National
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD
20910 or by telephoning the contacts listed below (see FOR FURTHER
INFORMATION CONTACT).
An electronic 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 also 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
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.),
directs the Secretary of Commerce (Secretary) to allow, upon request,
the incidental, but not intentional, taking of small numbers of marine
mammals, 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 either regulations are issued or, if
the taking is limited to harassment, a notice of a proposed
authorization is provided to the public for review.
Authorization for the incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring, and reporting of such takings
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103
as ``* * * an impact resulting from the specified activity that cannot
be reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.''
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild [Level A harassment]; or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering [Level B harassment].
Summary of Request
On November 26, 2013, NMFS received an application from the City of
San Diego, Engineering and Capital Projects Department, requesting an
IHA for the taking of marine mammals incidental to construction
activities. NMFS determined that the IHA application was adequate and
complete
[[Page 32700]]
on November 26, 2013. NMFS published a notice making preliminary
determinations and proposing to issue an IHA on February 11, 2014 (79
FR 8160). The notice initiated a 30 day public comment period.
The City of San Diego will undertake the construction activities
between June 2014 and June 2015 at the Children's Pool Lifeguard
Station in La Jolla, California. In-air noise generated from equipment
used during the construction activities is likely to result in the take
of marine mammals. The requested IHA will 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.
NMFS issued the City of San Diego an IHA in 2013 (78 FR 40705, July
8, 2013) for demolition and construction activities at the Children's
Pool Lifeguard Station that were scheduled to be completed in 2013.
Because the construction activities were subject to delays (e.g.,
nesting migratory birds, unexpected drainage pipes, unexpected
demolition and construction planning, etc.) and could not be completed
by December 15, 2013, the City of San Diego requested a renewal of the
2013 IHA for an additional year. 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 Specified Activity
Overview
The City of San Diego plans to conduct construction activities at
the Children's Pool Lifeguard Station in La Jolla, CA in order to meet
the needs of the lifeguards at Children's Pool and the demand for
lifeguard services. 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 in 2013 and construction of the new
lifeguard station is expected to be completed in 2014.
Dates and Duration
The City of San Diego is planning to begin/resume the 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
City of San Diego and NMFS are requiring a moratorium on all
construction activities during harbor seal pupping and weaning (i.e.,
December 15th to May 30th; see page 5 of the Mitigated Negative
Declaration in the IHA application). Therefore, work on this project
can only be performed between June 1st and December 14th of any year.
Planned 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'' included in the
IHA application and local ordinances. As a modification to the original
IHA, the City of San Diego has requested that planned construction
activities be allowed on weekends (i.e., Saturday and Sunday to ensure
completion of the project during 2014. The exact dates of the planned
activities depend on logistics and scheduling. The IHA is valid through
June 2015 to allow for construction delays.
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). The locations and distances (in ft) from the
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.
Detailed Description of the Specified Activities
The Children's Pool was created in 1931 by building a breakwater
wall which created a protected pool for swimming. Although partially
filled with sand, the Children's Pool still has open water for swimming
and 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, and
for 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 annually, and lifeguards have taken an average of 8,147
preventive actions and 86 water rescues annually (CASA, 2010; 2011;
2012).
The previous lifeguard facility at Children's Pool, built in 1967,
was old, deteriorating from saltwater intrusion, and no longer served
the needs of the lifeguard staff or the beach-going public. The
structure was condemned on February 22, 2008 due to its deteriorated
condition and lack of structural integrity. Because the existing
building was no longer viable, a temporary lifeguard tower was moved
in. However, a new lifeguard station is required to meet the needs of
the lifeguards and the demand for lifeguard services.
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 in 2013 and construction of the new lifeguard station is
expected to be completed in 2014. The new lifeguard facility is in an
optimal location to provide lifeguard service to the community. The
new, three-story, building will contain a lower level with beach access
level public restrooms and showers, lifeguard lockers, and sewage pump
room; a second level with two work stations, ready/observation room,
kitchenette, restroom, and first aid station; and a third
``observation'' level with 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 will be located along the north end of the lower level.
The walls will be designed for a minimum design life of 50 years and
will not be undermined from ongoing coastal erosion. The walls will not
be readily viewed from Coast Boulevard, the public sidewalks or the
surrounding community. Enhanced paving, seating and viewing space,
drinking fountains, adapted landscaping, and water efficient irrigation
will also be included.
The City of San Diego has divided the 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.
Demolition and construction of the new lifeguard station was
estimated to take approximately 7 months (148 actual demolition and
construction
[[Page 32701]]
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. The City of San Diego completed phases 1 to 4 by
December 2013. Construction of phases 5 to 9 will commence in June
2014, thereby necessitating a renewal of the previous IHA.
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) provides a detailed summary on phases 1
to 4 (i.e., mobilization and temporary facilities, demolition and site
clearing, site preparation and utilities, and building foundation).
Phases 5 to 9 include (phases overlap in time):
(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.
This phase will be completed in 2014 and has a maximum source level
of 100 dB.
The exact dates of the planned activities depend on logistics and
scheduling.
Sound levels during all phases of the project will not exceed 110
dB re 20 [mu]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 published or
manufacturers' 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 project site. Operation of the equipment is the primary activity
within the range of construction activities that is likely to affect
marine mammals by potentially exposing them to in-air (i.e., airborne
or sub-aerial) noise. During the working day, the City of San Diego
estimates there will be sound source levels above 90 dB re 20 [mu]Pa,
including 65 days of 100 to 110 dB re 20 [mu]Pa at the construction
site.
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 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 [mu]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 construction activities.
Additional details regarding the 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.
Comments and Responses
A notice of preliminary determinations and proposed IHA for the
City of San Diego's construction activities was published in the
Federal Register on February 11, 2014 (79 FR 8160). During the 30-day
public comment period, NMFS received comments from the Marine Mammal
Commission (Commission) and a private citizen. The comments are posted
online at: https://www.nmfs.noaa.gov/pr/permits/incidental.htm.
Following are the substantive comments and NMFS's responses:
Comment 1: The Commission considers the proposed monitoring and
mitigation measures sufficient to avoid significant impacts on harbor
seals, California sea lions, and northern elephant seals that might
occur in the proposed project area. The Commission recommends that NMFS
issue the IHA, subject to inclusion of the proposed monitoring and
mitigation measures.
Response: NMFS concurs with the Commission's recommendation and has
issued the IHA to the City of San Diego.
Comment 2: The Commission commends the City of San Diego for
conducting in-situ measurements of in-air sound levels during last
year's activities. To better assess in-air sound propagation and source
levels of the specific construction activities during 2014, the
Commission suggests that the City of San Diego note the distance from
the sound meter to each sound-producing activity when conducting sound
measurements.
Response: NMFS has included this recommendation as a monitoring and
reporting measure in the IHA (see ``Mitigation'' and ``Monitoring and
Reporting'' sections below for more information).
Comment 3: A private citizen states that pinnipeds will be killed
by the proposed activities and believes that the proposed IHA should be
denied to the City of San Diego.
Response: As described in detail in the Federal Register notice for
the proposed IHA (79 FR 8150, February 11, 2014) and this document,
NMFS has determined that the City of San Diego's construction
activities at the Children's Pool Lifeguard Station in La Jolla, CA,
will not cause injury, serious injury, or mortality to marine mammals.
The required monitoring and mitigation measures that the City of San
Diego will implement during the construction activities will further
reduce the adverse effects on marine mammals to the lowest level
practicable. NMFS anticipates only behavioral disturbance
[[Page 32702]]
to occur during the conduct of the construction activities.
Description of Marine Mammals in the Specified Geographic Area of the
Specified Activity
Three species of pinnipeds are known to or could occur in the
Children's Pool 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. Therefore, these three species are likely to be exposed to
effects of the specified activities. A variety of other marine mammals
have on occasion been reported in the coastal waters off 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 immediate action area of the Children's Pool beach. Therefore, NMFS
does not expect, and is not authorizing, incidental take of other
marine mammal species from the specified activities. Table 1 below
identifies the cetacean and pinnipeds species, their habitat, and
conservation status in the nearshore area of the general region of the
project area.
Table 1--The Habitat, Abundance, and Conservation Status of Marine Mammals Inhabiting the General Region of the Action Area in the Pacific Ocean Off the
Southern Coast of California
--------------------------------------------------------------------------------------------------------------------------------------------------------
Best population
Species Habitat Occurrence Range estimate (minimum) ESA \2\ MMPA \3\
\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Gray whale (Eschrichtius Coastal and shelf. Transient during North Pacific 19,126 (18,107)... DL--Eastern NC--Eastern North
robustus). season migrations. Ocean, Gulf of Pacific stock. Pacific stock
California to EN--Western D--Western North
Arctic--Eastern Pacific stock. Pacific stock.
North Pacific
stock.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontocetes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale (Orcinus orca)..... Widely distributed Varies on inter- Cosmopolitan...... 354 (354)--West NL EN--Southern NC D--Southern
annual basis. Coast Transient resident Resident and AT1
stock. population. Transient
populations.
Bottlenose dolphin (Tursiops Offshore, inshore, Limited, small Tropical and 323 (290)-- NL................ NC.
truncatus). coastal, population within temperate waters California
estuaries. 1 km of shore. between 45[deg] Coastal stock.
North and South.
Long-beaked common dolphin Inshore........... Common, more Nearshore and 107,016 (76,224)-- NL................ NC.
(Delphinus capensis). inshore tropical waters. California stock.
distribution,
year-round
presence.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pinnipeds
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pacific harbor seal (Phoca Coastal........... Common............ Coastal temperate 30,196 (26,667)-- NL................ NC.
vitulina richardii). to polar regions California stock.
in Northern
Hemisphere.
Northern elephant seal (Mirounga Coastal, pelagic Common............ Eastern and 124,000 (74,913)-- NL................ NC.
angustirostris). when not Central North California
migrating. Pacific--Alaska breeding stock.
to Mexico.
California sea lion (Zalophus Coastal, shelf.... Common............ Eastern North 296,750 (153,337)-- NL................ NC.
californianus). Pacific Ocean-- U.S. stock.
Alaska to Mexico.
Steller sea lion (Eumetopias Coastal, shelf.... Rare.............. North Pacific 72,223 (52,847)-- DL--Eastern U.S. D.
jubatus). Ocean--Central Eastern U.S. stock.
California to stock. EN--Western U.S.
Korea. stock.
Northern fur seal (Callorhinus Pelagic, offshore. Rare.............. North Pacific 12,844 (6,722)-- NL................ NC--California
ursinus). Ocean--Mexico to California stock. stock.
Japan.
Guadalupe fur seal Coastal, shelf.... Rare.............. California to Baja 7,408 (3,028)-- T................. D.
(Arctocephalus townsendi). California, Mexico to
Mexico. 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 and three adult California sea
lions and two juvenile northern elephant seals at the Children's Pool.
[[Page 32703]]
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).
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). Of the known haul-out sites, 14 locations are rookeries (2
locations have multiple sites, for a total of 17 sites) on or near the
mainland of California. 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). Harbor seals are one of the most common and
frequently observed marine mammals along the coastal environment.
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). Pacific harbor seals haul-out year-
round on 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. It is one of the three known haul-
out sites for this species in San Diego County. 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.
The Children's Pool area 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]).
The number of harbor seals in this area has 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 15. 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 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 will
exceed 250 harbor seals. Based on monitoring from a camera, Western
Alliance for Nature (WAN) reported that during the month of May 2013 up
to 302 harbor seals were documented resting on the Children's Pool
beach at any given time, with additional harbor seals on the rocks and
in the water (Wan, personal communication). Almost every day, except
for weekends, over 250 individual harbor seals were present on the
beach. During the months of September 2012 to January 2013, the average
number of harbor seals on the beach varied from 83 to 120 animals
before people entered the beach or when people were behind the rope.
During this same period, when people were on the beach and/or across
the rope, the average number of harbor seals varied from 7 to 27. The
weather (i.e., wind and/or rain) and the proximity of humans to the
beach likely affect the presence of harbor seals on the beach.
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. For example, harbor seals with red-
stained heads and coats, which are typical of some harbor seals in San
Francisco Bay have been observed at Children's Pool, indicating that
seals tagged at other locations and haul-out sites visit the site. 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
[[Page 32704]]
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), 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 a full species, separate 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). This species of sea lion is 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. A 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 United
States.
The entire California sea lion 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 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
that survived 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. However,
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's 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 of the Specified Activity on Marine Mammals
This section includes a summary and discussion of the ways that the
types of stressors associated with the specified activity (e.g.,
construction equipment and activities) have been observed to impact
marine mammals. This discussion may also include reactions that we
consider to rise to the level of a take and those that we do not
consider to rise to the level of take (for example, with acoustics), we
may include a discussion of studies that showed animals not reacting at
all to sound or exhibiting barely measureable
[[Page 32705]]
avoidance. This section is intended as a background of potential
effects and does not consider either the specific manner in which this
activity will be carried out or the mitigation that will be
implemented, or how either of those will shape the anticipated impacts
from this specific activity. The ``Estimated Take by Incidental
Harassment'' section later in this document will include a quantitative
analysis of the number of individuals that are expected to be taken by
this activity. The ``Negligible Impact Analysis'' section will include
the analysis of how this specific activity will impact marine mammals
and will consider the content of this section, the ``Estimated Take by
Incidental Harassment'' section, the ``Mitigation'' section, and the
``Anticipated Effects on Marine Mammal Habitat'' section to draw
conclusions regarding the likely impacts of this activity on the
reproductive success or survivorship of individuals and from that on
the affected marine mammal populations or stocks.
When considering the influence of various kinds of sound on the
marine environment, it is necessary to understand that different kinds
of marine life are sensitive to different frequencies of sound. Based
on available behavioral data, audiograms have been derived using
auditory evoked potentials, anatomical modeling, and other data,
Southall et al. (2007) designate ``functional hearing groups'' for
marine mammals and estimate the lower and upper frequencies of
functional hearing of the groups. The functional groups and the
associated frequencies are indicated below (though animals are less
sensitive to sounds at the outer edge of their functional range and
most sensitive to sounds of frequencies within a smaller range
somewhere in the middle of their functional hearing range):
Low-frequency cetaceans (13 species of mysticetes):
Functional hearing is estimated to occur between approximately 7 Hz and
30 kHz;
Mid-frequency cetaceans (32 species of dolphins, six
species of larger toothed whales, and 19 species of beaked and
bottlenose whales): Functional hearing is estimated to occur between
approximately 150 Hz and 160 kHz;
High-frequency cetaceans (eight species of true porpoises,
six species of river dolphins, Kogia spp., the franciscana (Pontoporia
blainvillei), and four species of cephalorhynchids): Functional hearing
is estimated to occur between approximately 200 Hz and 180 kHz; and
Phocid pinnipeds in water: Functional hearing is estimated
to occur between approximately 75 Hz and 100 kHz;
Otariid pinnipeds in water: Functional hearing is
estimated to occur between approximately 100 Hz and 40 kHz.
As mentioned previously in this document, 3 marine mammal species
(0 cetacean and 3 pinniped species) are likely to occur in the proposed
action area. Of the 3 pinniped species likely to occur in the City of
San Diego's proposed action area, 2 are classified as phocid pinnipeds
(i.e., Pacific harbor seal and northern elephant seal) and, 1 is
classified as an otariid pinniped (i.e., California sea lion) (Southall
et al., 2007). The City of San Diego requests authorization for Level B
harassment of these 3 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 construction activities of the
Children's Pool Lifeguard Station at La Jolla, CA discussed above. NMFS
considers a species' functional hearing group when we analyze the
effects of exposure to sound on marine mammals.
The notice of the proposed IHA (79 FR 8160, February 11, 2014)
included a discussion of the effects of in-air sounds from construction
activities on pinnipeds, which included tolerance, behavioral
disturbance, and hearing impairment. NMFS refers readers to the City of
San Diego's IHA application, NMFS's EA for additional information on
the behavioral reactions (or lack thereof) by all types of marine
mammals to high levels of in-air sounds.
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
``Mitigation'' and ``Monitoring and Reporting'' sections), which are
designed to effect the least practicable impact on affected marine
mammal species or stocks.
Anticipated Effects on Marine Mammal Habitat
The rocks and beaches at or near the Children's Pool in La Jolla,
CA, are almost exclusively Pacific harbor seal hauling-out sites.
Harbor seals have been observed hauling-out and documented giving birth
at the Children's Pool since the 1990s (Yochem and Stewart, 1998; Hanan
& Associates, 2004). It is one of the three known haul-out sites for
this species in San Diego County and 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. More information
on this population of Pacific harbor seals can be found in the
``Description of Marine Mammals in the Specified Geographic Area of the
Specified Activity.''
The primary anticipated adverse impacts upon habitat consist of
temporary changes to the in-air acoustic environment, as detailed in
the proposed IHA notice (79 FR 8160, February 11, 2014). These changes
are minor, temporary, and limited in duration to the period of the
construction activities. 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.
All construction activities are beyond or outside the habitat areas
where harbor seals and other pinnipeds are found. Visual barriers will
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 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 will 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).
The area of habitat affected is small and the effects are localized
and temporary; thus there is no reason to expect any significant
reduction in habitat available for foraging and other habitat uses. No
aspect of the project is anticipated to have any permanent effect on
the location or use of pinniped haul-outs or related habitat features
in the area (Hana & Associates, 2011). Further, the 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
activities is expected by the
[[Page 32706]]
City of San Diego and NMFS to be quickly restored after construction
activities end and all equipment and barriers are removed.
For these reasons, NMFS anticipates that the 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.
Mitigation
In order to issue an Incidental Take Authorization (ITA) under
section 101(a)(5)(D) of the MMPA, NMFS must prescribe, where
applicable, the permissible methods of taking pursuant to such
activity, and other means of effecting the least practicable impact on
such species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of such species or stock for taking for certain
subsistence uses (where relevant).
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 construction
activities are planned to occur outside the harbor seal pupping and
weaning periods.
The City of San Diego will implement the following mitigation
measures to help ensure the least practicable impact on marine mammals:
(1) Prohibition of construction during pupping season;
(2) Daily construction timing;
(3) Construction of visual and acoustic barriers;
(4) Use of Protected Species Observers;
(5) Establishment of buffer zones; and
(6) Potential abandonment survey.
Visual and acoustic barriers were constructed in 2013 to mitigate
the effects of the construction activities. 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 sheets of plywood were
stood upright and held up with two wooden two by fours hinged to the
top of the frame, so they could be collapsed and moved depending on the
location and need for access by demolition and construction equipment.
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 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
construction activities for the project. Once the walls of the
lifeguard station's building are in place, much of the 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, and also included several additional
measures in the final IHA (78 FR 40705, July 8, 2013). These included
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 would be 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 originally 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 requirement has been removed because it is no longer
practicable due to logistics, scheduling and to allow the planned
activities to be completed before the next pupping season.
The activities planned by the applicant includes a variety of
measures calculated to minimize potential impacts on marine mammals,
including:
Prohibition of Construction During Pupping Season
Construction shall be prohibited during the Pacific harbor seal
pupping season (December 15th to May 15th) and for an additional two
weeks thereafter to accommodate lactation and weaning of late season
pups. Thus, construction shall be prohibited from December 15th to June
1st.
Daily Construction Timing
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.
Construction of Visual and Acoustic Barriers
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.
Protected Species Observers
Trained PSOs will be used 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. More information about this measure is contained in
the ``Monitoring'' section (below).
Establishment of Buffer Zones
The City of San Diego shall establish buffer zones (i.e., where
sound pressure levels are at or above 90 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.
[[Page 32707]]
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 to June 1 through June 27, 2015 to finish the
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 construction
activities.
Potential Abandonment Survey
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 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.
Figure 1. 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, which includes
the projected mean as well as the upper 95% and lower 95% confidence
intervals, was used to estimate harbor seals expected to be hauled-out
by day.
[GRAPHIC] [TIFF OMITTED] TN06JN14.000
More information regarding the City of San Diego's monitoring and
mitigation measures for the construction activities at the Children's
Pool Lifeguard Station can be found in the IHA application.
Mitigation Conclusions
NMFS carefully evaluated the applicant's mitigation measures and
considered a range of other measures in the context of ensuring that
NMFS prescribes the means of effecting the least practicable 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 to one another:
The manner in which, and the degree to which, the
successful 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.
Any mitigation measure(s) prescribed by NMFS should be able to
accomplish, have a reasonable likelihood of accomplishing (based on
current science), or contribute to the accomplishment of one or more of
the general goals listed below:
(1) Avoidance or minimization of injury or death of marine mammals
wherever possible (goals 2, 3, and 4 may contribute to this goal).
[[Page 32708]]
(2) A reduction in the numbers of marine mammals (total number or
number at biologically important time or location) exposed to received
levels from construction equipment, or other activities expected to
result in the take of marine mammals (this goal may contribute to 1,
above, or to reducing harassment takes only).
(3) A reduction in the number of times (total number or number at
biologically important time or location) individuals would be exposed
to received levels from construction equipment, or other activities
expected to result in the take of marine mammals (this goal may
contribute to 1, above, or to reducing harassment takes only).
(4) A reduction in the intensity of exposures (either total number
or number at biologically important time or location) to received
levels from construction equipment, or other activities expected to
result in the take of marine mammals (this goal may contribute to a,
above, or to reducing the severity of harassment takes only).
(5) Avoidance of minimization of adverse effects to marine mammal
habitat, paying special attention to the food base, activities that
block or limit passage to or from biologically important areas,
permanent destruction of habitat, or temporary destruction/disturbance
of habitat during a biologically important time.
(6) For monitoring directly related to mitigation--an increase in
the probability of detecting marine mammals, thus allowing for more
effective implementation of the mitigation.
Based on NMFS's evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS or recommended by the public,
NMFS has determined that the mitigation measures provide the means of
effecting the least practicable impact on marine mammal species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.
Monitoring and Reporting
In order to issue an 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 ITAs 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.
Monitoring measures prescribed by NMFS should accomplish one or
more of the following general goals:
(1) An increase in the probability of detecting marine mammals,
both within the mitigation zone (thus allowing for more effective
implementation of the mitigation) and in general to generate more data
to contribute to the analyses mentioned below;
(2) An increase in our understanding of how many marine mammals are
likely to be exposed to levels from construction equipment that we
associate with specific adverse effects, such as behavioral harassment,
TTS or PTS;
(3) An increase in our understanding of how marine mammals respond
to stimuli expected to result in take and how anticipated adverse
effects on individuals (in different ways and to varying degrees) may
impact the population, species, or stock (specifically through effects
on annual rates of recruitment or survival) through any of the
following methods:
Behavioral observations in the presence of stimuli
compared to observations in the absence of stimuli (need to be able to
accurately predict received level, distance from source, and other
pertinent information);
Physiological measurements in the presence of stimuli
compared to observations in the absence of stimuli (need to be able to
accurately predict receive level, distance from the source, and other
pertinent information);
Distribution and/or abundance comparisons in times or
areas with concentrated stimuli versus times or areas without stimuli;
(4) An increased knowledge of the affected species; and
(5) An increase in our understanding of the effectiveness of
certain mitigation and monitoring measures.
Monitoring
The City of San Diego 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 San Diego Council Hearing, December
14, 2011) to all public concerns.
The monitoring plan involves surveying prior to construction
activities, monitoring during construction activities by NMFS-approved
PSOs with high-resolution binoculars and handheld digital sound level
meters (measuring devices), and post-construction monitoring. The City
of San Diego will include sound measurements at and near the
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 construction activities.
During the construction activities, monitoring shall assess
behavior and potential behavioral responses to construction noise and
activities. PSOs will observe the construction activities from a
station along the breakwater wall and from the base of the cliff below
the construction area. PSOs will be on site approximately 30 minutes
before the start of construction activities and will remain on site
until 30 minutes after activities have ceased. Visual digital
recordings and photographs shall be used to document individuals and
behavioral responses to construction. The City of San Diego (i.e.,
PSOs) 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.''
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 requirements in the
Mitigated Negative Declaration, which states that ``the biologist shall
document field activity via the Consultant Site Visit Record. The
Consultant Site Visit Record shall be
[[Page 32709]]
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. Finally, 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.
NMFS notes that 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). The City of San Diego has stated that there is no
suitable place to mount the camera at the construction site. Therefore,
the City of San Diego cannot do periodic checks using the webcam for
monitoring purposes as required by the 2013 IHA. However, 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 have been able to see visual evidence of Level B
harassment but probably would not have been able to distinguish between
harassment from construction activities and harassment from the public
since the camera had a limited scope and only showed 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 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 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
acoustic effects from 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;
Distances from the sound meter to each sound-producing
activity when conducting sound measurements;
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 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.
Reporting
The City of San Diego will 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 will 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, 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 will be considered to be the
final report.
While the IHA does 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 if a dead stranded
pinniped is found 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.
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 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
[[Page 32710]]
Protected Resources, NMFS, at 301-427-8401 and/or by email to
Jolie.Harrison@noaa.gov, 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 the action necessary to minimize the likelihood
of further prohibited take and ensure MMPA compliance. The City of San
Diego may not resume its activities until notified by NMFS via letter,
email, or 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 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, 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 modification
of the activities is 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 (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, 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.
Monitoring Results From Previously Authorized Activities
Hanan & Associates, Inc., on behalf of the City of San Diego,
conducted marine mammal and in-air sound monitoring at six locations
during demolition and construction activities at the Children's Pool
Lifeguard Station in La Jolla, California from June 3, 2013 to February
12, 2014. Demolition and construction activities began on July 10, 2013
and were halted for the Pacific harbor seal pupping season (December
15, 2013 to June 1, 2014). During 115 days of visual and acoustic
observations, Hanan & Associates counted a total of 61,631 Pacific
harbor seals and 26,037 people. During the 2013 demolition and
construction activities, Hanan & Associates observed a total of 15,673
takes by Level B harassment (i.e., alerts, movements, and flushes) that
could be attributed to demolition and construction activities (5,095
takes), the general public (8,639 takes), and other sources (1,939
takes). As of April 15, 2014, at least 60 harbor seal pups (including 2
still births) have been born at the Children's Pool and there has been
no indication of abandonment. In addition to the Pacific harbor seal
sightings, PSOs recorded 11 sightings of cetaceans (gray whales and
bottlenose dolphins), 4 sightings of California sea lions (1 juvenile,
3 adult), and 2 northern elephant seals (both juveniles) at the
Children's Pool.
Hanan & Associates recorded mean in-air sound levels of 69.2 dB re
20 [micro]Pa (range of 55.6 to 93.7 dB re 20 [micro]Pa) during non-
demolition and construction activities and 70.3 dB re 20 [micro]Pa
(range of 50.7 to 103.1 dB re 20 [micro]Pa) during demolition and
construction activities. During 2013, measured sound levels from the
demolition equipment reaching the pinnipeds did not exceed
approximately 90 dB at the haul-out area closest to the demolition and
construction activities, nor did they exceed a peak of about 83 dB re
20 [micro]Pa at the mean hauling-out distance (30.5 m).
More information on the monitoring results from the City of San
Diego's previous demolition and construction activities at the La Jolla
Children's Pool Lifeguard Station can be found in the final monitoring
report.
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].
NMFS's current underwater and in-air acoustic exposure criteria:
------------------------------------------------------------------------
Criterion
Criterion Definition Threshold
------------------------------------------------------------------------
Underwater Impulsive (Non-Explosive) Sound
------------------------------------------------------------------------
Level A harassment (injury)..... Permanent 180 dB re 1
threshold shift [micro]Pa-m (root
(PTS) (Any level means square
above that which [rms])
is known to cause (cetaceans) 190
TTS). dB re 1 [micro]Pa-
m (rms)
(pinnipeds).
Level B harassment.............. Behavioral 160 dB re 1
disruption (for [micro]Pa-m
impulsive noise). (rms).
Level B harassment.............. Behavioral 120 dB re 1
disruption (for [micro]Pa-m
continuous noise). (rms).
------------------------------------------------------------------------
[[Page 32711]]
In-Air Sound
------------------------------------------------------------------------
Level A harassment.............. NA................ NA.
Level B harassment.............. Behavioral 90 dB re 20
disruption. [micro]Pa (harbor
seals) 100 dB re
20 [micro]Pa (all
other pinniped
species) NA
(cetaceans).
------------------------------------------------------------------------
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 construction project at
the Children's Pool. No takes by injury (Level A harassment), serious
injury, or mortality are expected. NMFS will consider pinnipeds
behaviorally reacting to the construction activities by 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 movements by individuals as behavioral criteria
for take by Level B harassment.
With 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. An unknown portion of the
incidental takes will 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] TN06JN14.001
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
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 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
[[Page 32712]]
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 will equate to 600, 2, and 1 individuals,
respectively, being exposed multiple times. More information on the
number of takes authorized, and the approximate percentage of the stock
for the three species in the action area can be found in Table 2
(below).
Table 2--Summary of the Authorized Incidental Take by Level B Harassment of Pinnipeds for the City of San
Diego's Construction Activities Generating in-air Noise at the Children's Pool Lifeguard Station in La Jolla, CA
----------------------------------------------------------------------------------------------------------------
Approximate
Take Estimated percentage of
Species authorization number of Abundance estimated Population
(number of individuals stock trend
exposures) taken (individuals)
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal.......... 10,000 600 30,196--Californ 1.98 Increased in
ia stock. California
1981 to 2004.
California sea lion.......... 100 2 296,750--U.S. <0.01 Increasing.
stock.
Northern elephant seal....... 25 1 124,000--Califor <0.01 Increasing
nia breeding through 2005,
stock. now stable.
----------------------------------------------------------------------------------------------------------------
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 information for IHA permitting in future
projects. Potential additional mitigation (other than what is already
required) 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.
Impact on Availability of Affected Species or Stock for Taking for
Subsistence Uses
Section 101(a)(5)(D) of the MMPA requires NMFS to determine that
the authorization will not have an unmitigable adverse effect on the
availability of marine mammal species or stocks for subsistence use.
There are not relevant subsistence uses of marine mammals implicated by
this action. Therefore, NMFS has determined that the total taking of
affected species or stocks will not have an unmitigable adverse impact
on the availability of such species or stocks for subsistence purposes.
Analysis and 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; 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 the 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
construction activities, and none are authorized by NMFS. The planned
activities are not expected to result in the alteration of reproductive
behaviors, and the potentially affected species will be subjected to
only temporary and minor behavioral impacts.
Behavioral disturbance may potentially occur incidental to the
visual presence of humans and 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).
Therefore, there is a high likelihood that many of the harbor seals
present during the 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).
As discussed in detail above, the project scheduling avoids
sensitive life stages for Pacific harbor seals. Planned project
activities producing in-air noise will commence in June and end by
December 15. The commencement date occurs after the end of the pupping
season, affords additional time to accommodate lactation and weaning of
season pups, and takes into account periods of lowest haul-out
occurrence. The end date falls approximately two weeks prior to January
1, the time after which most births occur, providing protection for
pregnant and nursing harbor seals that may give birth before January 1.
[[Page 32713]]
Table 2 of this document outlines the number of Level B harassment
takes that are anticipated as a result of these 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 required mitigation,
monitoring, and reporting measures that will be implemented to minimize
impacts to marine mammals.
The Children's Pool is one of the three known haul-out sites for
Pacific harbor seal in San Diego County and the only rookery in San
Diego County and the only mainland rookery on the U.S. west coast for
this species between the border of Mexico and Point Mugu in Ventura
County, CA. For the other marine mammal species that may occur within
the action area (i.e., California sea lions and northern elephant
seals), 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, Pacific harbor seals have been hauling-out at Children's Pool
during the year for many years (including during pupping season and
while females are pregnant) while being exposed to anthropogenic sound
sources such as vehicle traffic, human voices, etc. and other stimuli
from human presence. While studies have shown the types of sound
sources used during the 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. The Pacific harbor seals
have repeatedly hauled-out to pup over many years and the NMFS Stock
Assessment Reports (NMFS, 2011) for this stock have shown that the
population is increasing and is considered stable. Additionally, the
construction activities will increase 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.
NMFS's practice has been to apply the 90 dB re 20 [micro]Pa and 100
dB re 20 [micro]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 construction activities will exceed 110 dB at the
source and no measured sounds approached that sound level in 2013.
Of the 3 marine mammal species under NMFS jurisdiction that may or
are known to likely occur in the 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 action area. To protect these animals (and other
marine mammals in the action area), the City of San Diego shall
schedule construction activities with highest sound levels 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, the activity is not expected to impact rates of
recruitment or survival.
Although behavioral modifications, including temporarily vacating
the area during the 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 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 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 activity to the degree that will have
a negligible impact on the species or stocks in the action area.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
the City of San Diego's activities will have a negligible impact on the
affected marine mammal species or stocks.
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 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 will 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 has determined, provided that the aforementioned mitigation
and monitoring measures are implemented, that the impact of the
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.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the mitigation and monitoring
measures, NMFS preliminarily finds that small numbers of marine mammals
will be taken relative to the populations of the affected species or
stocks. See Table 2 for the authorized take numbers of marine mammals.
[[Page 32714]]
Endangered Species Act
NMFS (Permits and Conservation Division) has determined that an ESA
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 planned
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. Based on the
analysis in the EA and the underlying information in the record,
including the IHA application, proposed IHA, and public comments, NMFS
prepared and signed a Finding of No Significant Impact (FONSI)
determining that preparation of an Environmental Impact Statement was
not required. The FONSI was signed on June 28, 2013 prior to the
issuance of the IHA for the City of San Diego's activities from June
2013 to June 2014. The currently planned construction activities that
will be covered by the IHA from June 2014 to June 2015 are similar to
the demolition and construction activities described in the 2013 EA.
NMFS has reviewed CEQ's regulations and has determined that it is not
necessary to supplement the 2013 EA because the effects of this IHA
fall within the scope of those documents and do not require further
supplementation. Based on the public comments received in response to
the publication in the Federal Register notice and proposed IHA, NMFS
has reaffirmed its FONSI.
Authorization
NMFS has issued an IHA to the City of San Diego for conducting
construction activities at the La Jolla Children's Pool Lifeguard
Station, provided the previously mentioned mitigation, monitoring, and
reporting requirements are incorporated.
Dated: May 30, 2014.
Perry F. Gayaldo,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2014-13213 Filed 6-5-14; 8:45 am]
BILLING CODE 3510-22-P