Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Pier Replacement Project, 65378-65386 [2014-26195]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 79, Number 213 (Tuesday, November 4, 2014)]
[Notices]
[Pages 65378-65386]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-26195]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD445


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to a Pier Replacement Project

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to the 
U.S. Navy (Navy) to incidentally harass,

[[Page 65379]]

by Level B harassment only, six species of marine mammals during 
construction activities associated with a pier replacement project at 
Naval Base Point Loma, San Diego, California.

DATES: This authorization is effective from October 8, 2014, through 
October 7, 2015.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Availability

    An electronic copy of the Navy's application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. A memorandum describing our 
adoption of the Navy's Environmental Assessment (2013) and our 
associated Finding of No Significant Impact, prepared pursuant to the 
National Environmental Policy Act, are also available at the same site. 
In case of problems accessing these documents, please call the contact 
listed above (see FOR FURTHER INFORMATION CONTACT).

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as `` . . . an impact resulting from the specified activity that cannot 
be reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of 
an application followed by a 30-day public notice and comment period on 
any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization. Except with respect to certain 
activities not pertinent here, the MMPA defines ``harassment'' as ``any 
act of pursuit, torment, or annoyance which (i) has the potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
harassment]; or (ii) has the potential to disturb a marine mammal or 
marine mammal stock in the wild by causing disruption of behavioral 
patterns, including, but not limited to, migration, breathing, nursing, 
breeding, feeding, or sheltering [Level B harassment].''

Summary of Request

    On July 8, 2014, we received a request from the Navy for 
authorization to take marine mammals incidental to pile installation 
and removal associated with a pier replacement project in San Diego Bay 
at Naval Base Point Loma in San Diego, CA (NBPL), followed on July 14, 
2014, by a draft monitoring report for activities conducted under the 
previous IHA issued for this project. We reviewed these documents and 
provided a request for additional information to the Navy on August 5, 
2014; the Navy submitted revised versions of the request on August 14 
and August 19, 2014, the latter of which we deemed adequate and 
complete. The pier replacement project is planned to occur over four 
years; this IHA is valid only for the second year of work, from October 
8, 2014, through October 7, 2015. Hereafter, use of the generic term 
``pile driving'' may refer to both pile installation and removal unless 
otherwise noted.
    The use of both vibratory and impact pile driving during the pier 
replacement project is expected to produce underwater sound at levels 
that have the potential to result in behavioral harassment of marine 
mammals. Species with the expected potential to be present during all 
or a portion of the in-water work window include the California sea 
lion (Zalophus californianus), harbor seal (Phoca vitulina richardii), 
bottlenose dolphin (Tursiops truncatus truncatus), gray whale 
(Eschrichtius robustus), and either short-beaked or long-beaked common 
dolphins (Delphinus spp.). California sea lions are present year-round 
and are common in the project area, while bottlenose dolphins may be 
present year-round, but sightings are highly variable in Navy marine 
mammal surveys of northern San Diego Bay. Harbor seals are also common 
but have limited occurrence in the project area in comparison with sea 
lions. Gray whales may be observed in San Diego Bay sporadically during 
migration periods. Common dolphins are known to occur in nearshore 
waters outside San Diego Bay, but are only rarely observed near or in 
the bay.
    This is the second such IHA issued to the Navy for this project, 
following the IHA issued effective from September 1, 2013, through 
August 31, 2014 (78 FR 44539). A monitoring report for the first IHA is 
available on the Internet at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm, and it provides environmental information related to 
issuance of this IHA.

Description of the Specified Activity

Overview

    NBPL provides berthing and support services for Navy submarines and 
other fleet assets. The existing fuel pier serves as a fuel depot for 
loading and unloading tankers and Navy underway replenishment vessels 
that refuel ships at sea (``oilers''), as well as transferring fuel to 
local replenishment vessels and other small craft operating in San 
Diego Bay, and is the only active Navy fueling facility in southern 
California. Portions of the pier are over one hundred years old, while 
the newer segment was constructed in 1942. The pier as a whole is 
significantly past its design service life and does not meet current 
construction standards.
    Over the course of four years, the Navy plans to demolish and 
remove the existing pier and associated pipelines and appurtenances 
while simultaneously replacing it with a generally similar structure 
that meets relevant standards for seismic strength and is designed to 
better accommodate modern Navy ships. Demolition and construction are 
planned to occur in two phases to maintain the fueling capabilities of 
the existing pier while the new pier is being constructed. During the 
second year of construction (the specified activity considered under 
this IHA), approximately 272 piles (18- to 36-in steel pipe piles) will 
be installed and 402 piles will be removed (via multiple methods) over 
the course of a maximum 135 in-water construction days. The maximum 135 
days of in-water construction pertains to impact and vibratory pile 
driving, as well as pneumatic chipping (unless required project 
monitoring

[[Page 65380]]

demonstrates that this activity does not have the potential to result 
in the incidental take of marine mammals). Pile removal may occur via 
other methods beyond this 135-day limit. All steel piles will be driven 
with a vibratory hammer for their initial embedment depths and finished 
with an impact hammer, as necessary.
    The planned actions with the potential to incidentally harass 
marine mammals within the waters adjacent to NBPL are vibratory and 
impact pile installation and removal of piles via vibratory hammer or 
pneumatic chipper. Concurrent use of multiple pile driving rigs is not 
planned; however, pile removal conducted as part of demolition 
activities (which could occur via a number of techniques other than use 
of a vibratory hammer) is expected to occur concurrently with pile 
installation conducted as part of construction activities.

Dates and Duration

    The entire project is scheduled to occur from 2013-17; the planned 
activities that would occur during the period of validity for this IHA, 
during the second year of work, would occur for one year. Under the 
terms of a memorandum of understanding (MOU) between the Navy and the 
U.S. Fish and Wildlife Service (FWS), all noise- and turbidity-
producing in-water activities in designated least tern foraging habitat 
are to be avoided during the period when least terns are present and 
engaged in nesting and foraging (a window from approximately September 
15 through April 1). However, the Navy may extend that window, 
depending on the nature of the activity and with approval from FWS and 
it is possible that in-water work, as described below, could occur at 
any time during the period of validity of this IHA. We expect that in-
water work would primarily occur during the October 1-April 1 period. 
In-water pile driving work is limited to 135 days in total under this 
IHA. Pile driving will occur during normal working hours (approximately 
7 a.m. to 4 p.m.).

Specific Geographic Region

    NBPL is located on the peninsula of Point Loma near the mouth and 
along the northern edge of San Diego Bay (see Figures 1-1 and 1-2 in 
the Navy's application). San Diego Bay is a narrow, crescent-shaped 
natural embayment oriented northwest-southeast with an approximate 
length of 24 km and a total area of roughly 4,500 ha. The width of the 
bay ranges from 0.3 to 5.8 km, and depths range from 23 m mean lower 
low water (MLLW) near the tip of Ballast Point to less than 2 m at the 
southern end (see Figure 2-1 of the Navy's application). San Diego Bay 
is a heavily urbanized area with a mix of industrial, military, and 
recreational uses. The northern and central portions of the bay have 
been shaped by historic dredging to support large ship navigation. 
Dredging occurs as necessary to maintain constant depth within the 
navigation channel. Outside the navigation channel, the bay floor 
consists of platforms at depths that vary slightly. Sediments in 
northern San Diego Bay are relatively sandy, as tidal currents tend to 
keep the finer silt and clay fractions in suspension, except in harbors 
and elsewhere in the lee of structures, where water movement is 
diminished. Much of the shoreline consists of riprap and manmade 
structures. San Diego Bay is heavily used by commercial, recreational, 
and military vessels, with an average of over 80,000 vessel movements 
(in or out of the bay) per year (not including recreational boating 
within the Bay) (see Table 2-2 of the Navy's application). For more 
information about the specific geographic region, please see section 
2.3 of the Navy's application.

Detailed Description of Activities

    In order to provide context, we described the entire project in our 
Federal Register notice of proposed authorization associated with the 
first-year IHA (78 FR 30873; May 23, 2013). Please see that document 
for an overview of the entire fuel pier replacement project, or see the 
Navy's Environmental Assessment (2013) for more detail. In the notice 
of proposed authorization associated with the second-year IHA (79 FR 
53026; September 5, 2014) we provided an overview of relevant 
construction methods before describing only the specific project 
portions scheduled for completion during the second work window. We do 
not repeat that information here; please refer to that document for 
more information. Approximately 498 piles in total are planned to be 
installed for the project, including steel, concrete, and plastic 
piles. For the second year of work, approximately 272 piles will be 
installed (all steel pipe piles, 18- to 36-in). Tables 1 and 2 detail 
the piles to be installed and removed, respectively, under this IHA.

                                                        Table 1--Details of Piles To Be Installed
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                                                                                           Planned               Number per pile diameter (in)
               Purpose                         Location              Planned timing       number of  ---------------------------------------------------
                                                                                             days          18           24           30           36
--------------------------------------------------------------------------------------------------------------------------------------------------------
Indicator Pile Program...............  Outboard side of         Fall 2014..............            1            0            0            0            2
                                        existing pier.
Temporary dolphin....................  South of existing pier.  Fall 2014..............            5            0            0           10            0
Temporary shoring piles..............  Existing pier approach   Fall 2014..............            5            4            0            0            0
                                        and intersection.
Temporary trestle piles..............  North of new approach    Fall 2014..............           14            0           16            0            0
                                        trestle.
Abutment piles.......................  New pier, along          Winter 2014-15.........           10            0            0            0       \2\ 18
                                        shoreline.
Approach pier........................  New pier footprint.....  Fall 2014-Spring 2015..           90            0            0            0          104
Fuel pier............................  New pier footprint.....  Fall 2014..............           90            0            0            0           95
Permanent dolphins...................  North of existing pier.  Spring 2015............           10            0            0           23            0
                                                                                        ----------------------------------------------------------------

[[Page 65381]]

 
    Totals--272 piles................  .......................  Fall 2014-Spring 2015..      \1\ 135            4           16           33          219
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\1\ Numbers of piles, timing, and number of days associated with any particular component of work are subject to change. However, the total of 135 days
  in-water pile driving is an absolute maximum.
\2\ Land-based abutment piles will not be monitored.


                 Table 2--Details of Piles To Be Removed
------------------------------------------------------------------------
                         Pile type                              Number
------------------------------------------------------------------------
Concrete fender piles (14-, 18-, and 24-in)................           65
Plastic fender piles (13-in)...............................           29
Timber piles (12-in).......................................          286
Concrete-filled steel caissons.............................           22
                                                            ------------
    Total..................................................          402
------------------------------------------------------------------------

Description of Work Accomplished

    During the first in-water work season, two primary activities were 
conducted: Relocation of the Marine Mammal Program and the Indicator 
Pile Program. These activities were described in detail in our notice 
of proposed authorization associated with the second-year IHA (79 FR 
53026; September 5, 2014); please see that document for more 
information.

Comments and Responses

    We published a notice of receipt of the Navy's application and 
proposed IHA in the Federal Register on September 5, 2014 (79 FR 
53026). We received a letter from the Marine Mammal Commission; the 
Commission's comments and our responses are provided here, and the 
comments have been posted on the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.
    San Diego Bay is a busy industrial and recreational water body and, 
in recognition of the likelihood that ambient sound levels in the bay 
exceed NMFS' regulatory threshold for continuous noise (i.e., 120-dB 
rms), the Navy has been measuring ambient sound in the bay in the 
absence of construction activity per NMFS' guidance (NMFS, 2012). 
Results of that effort to date show that ambient sound is indeed louder 
than 120 dB rms, with daily averages of 128 dB rms measured in the 
vicinity of the project site during the Navy's indicator pile program 
conducted as part of the first year of the project; therefore, we 
substitute the louder value for use in delineating the zones employed 
in the Navy's mitigation and monitoring strategy (as described in our 
notice of proposed authorization). The Commission's comments concern 
the way we use those data for that purpose and the way in which we 
continue the acoustic monitoring effort designed to further our 
understanding of ambient sound levels.
    Comment 1: The Commission recommends that we require the Navy to 
use the mean ambient sound level minus at least one standard deviation 
(based on the three recording periods interspersed throughout the work 
window) down to the 120-dB re 1 [mu]Pa threshold as a basis for 
establishing the Level B harassment zone to fulfill its monitoring and 
reporting requirements for the authorization and to inform future 
authorizations.
    Response: We disagree with this recommendation. The 128-dB value is 
reported in accordance with NMFS' 2012 guidance document (NMFS, 2012) 
on data collection methods to characterize underwater background sound, 
which says that in order to characterize average conditions, the dB rms 
level that occurs at least fifty percent of the time should be used as 
the average background sound in consultations under the MMPA; 
therefore, the value is appropriately representative of existing data 
regarding background sound and is consistent with NMFS' guidance.
    Comment 2: The Commission recommends that we require the Navy to 
measure ambient sound levels both to the north and south of the fuel 
pier site to further refine the spatial differences in ambient sound 
levels near the project site, and that similar spatially-distributed 
methods should be used for determining sound propagation in the far-
field during installation and removal of various types and sizes of 
piles to identify the distance at which sound from those activities 
become indistinguishable from ambient.
    Response: We agree with the Commission's second recommendation and 
have discussed it with the Navy. Acoustic monitoring performed under 
this IHA will be conducted in accordance with the Commission's 
recommendation.

Description of Marine Mammals in the Area of the Specified Activity

    There are five marine mammal species which are either resident, 
have known seasonal occurrence, or have been observed recently in San 
Diego Bay, including the California sea lion, harbor seal, bottlenose 
dolphin, common dolphin, and gray whale. Note that common dolphins 
could be either short-beaked (Delphinus delphis delphis) or long-beaked 
(D. capensis capensis). While it is likely that common dolphins 
observed in the project area would be long-beaked, as it is the most 
frequently stranded species in the area from San Diego Bay to the U.S.-
Mexico border (Danil and St. Leger, 2011), the species' distributions 
overlap, and it is unlikely that observers would be able to 
differentiate them in the field. Therefore, we consider that any common 
dolphins observed--and any incidental take of common dolphins--could be 
either species. Navy records and other survey results indicate that 
other species that occur in the Southern California Bight may have the 
potential for isolated occurrence within San Diego Bay or just 
offshore. The Pacific white-sided dolphin (Lagenorhynchus obliquidens) 
has been sighted along a previously used transect on the opposite side 
of the Point Loma peninsula (Merkel and Associates, 2008). Risso's 
dolphin (Grampus griseus) is fairly common in southern California 
coastal waters (e.g., Campbell et al., 2010), but has not been seen in 
San Diego Bay. These species have not been observed near the project 
area and are not expected to occur there, and, given the unlikelihood 
of their exposure to sound generated from the project, are not 
considered further.
    We have reviewed the Navy's detailed species descriptions, 
including life history information, for accuracy and completeness and 
refer the reader to Sections 3 and 4 of the Navy's application instead 
of reprinting the information here. Please also refer to NMFS' Web site 
(www.nmfs.noaa.gov/pr/species/mammals) for generalized species accounts 
and to the Navy's

[[Page 65382]]

Marine Resource Assessment for the Southern California and Point Mugu 
Operating Areas, which provides information regarding the biology and 
behavior of the marine resources that may occur in those operating 
areas (DoN, 2008). The document is publicly available at 
www.navfac.navy.mil/products_and_services/ev/products_and_services/marine_resources/marine_resource_assessments.html (accessed August 23, 
2014). In addition, we provided information for the potentially 
affected stocks, including details of stock-wide status, trends, and 
threats, in our Federal Register notice of proposed authorization 
associated with the first-year IHA (78 FR 30873; May 23, 2013) and 
refer the reader to that document rather than reprinting the 
information here. We provided additional information for marine mammals 
with potential for occurrence in the area of the specified activity in 
our Federal Register notice of proposed authorization (79 FR 53026; 
September 5, 2014).
    Table 3 lists the marine mammal species with expected potential for 
occurrence in the vicinity of NBPL during the project timeframe and 
summarizes key information regarding stock status and abundance. See 
also Figure 3-2 of the Navy's application for observed occurrence of 
marine mammals in the project area. Taxonomically, we follow Committee 
on Taxonomy (2014). Please see NMFS' Stock Assessment Reports (SARs), 
available at www.nmfs.noaa.gov/pr/sars, for more detailed accounts of 
these stocks' status and abundance.
    All potentially affected species are addressed in the Pacific SARs 
(Carretta et al., 2014).

                                           Table 3--Marine Mammals Potentially Present in the Vicinity of NBPL
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                                                                                        Stock abundance (CV,              Annual  Relative occurrence in
               Species                         Stock              ESA/MMPA Status;        Nmin, most recent     PBR \3\    M/SI    San Diego Bay; season
                                                                Strategic (Y/N) \1\     abundance survey) \2\              \4\         of occurrence
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Eschrichtiidae:
    Gray whale......................  Eastern North Pacific..  --; N................  19,126 (0.071; 18,017;        558   \6\127  Rare migratory
                                                                                       2007).                                      visitor; late winter.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Bottlenose dolphin..............  California coastal.....  --; N................  323 \5\ (0.13; 290;           2.4      0.2  Occasional; year-
                                                                                       2005).                                      round.
    Short-beaked common dolphin.....  California/Oregon/       --; N................  411,211 (0.21; 343,990;     3,440       64  Rare; year-round (but
                                       Washington.                                     2008).                                      more common in warm
                                                                                                                                   season).
    Long-beaked common dolphin......  California.............  --; N................  107,016 (0.42; 76,224;        610     13.8  Rare; year-round (but
                                                                                       2009).                                      more common in warm
                                                                                                                                   season).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
 sea lions):
    California sea lion.............  U.S....................  --; N................  296,750 (n/a; 153,337;      9,200    >=431  Abundant; year-round.
                                                                                       2008).
Family Phocidae (earless seals):
    Harbor seal.....................  California.............  --; N................  30,196 (0.157; 26,667;      1,600       31  Uncommon and
                                                                                       2009).                                      localized; year-
                                                                                                                                   round.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (--) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
  or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks of
  pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge
  of the species' (or similar species') life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the
  minimum abundance may represent actual counts of all animals ashore.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value.

[[Page 65383]]

 
\5\ This value is based on photographic mark-recapture surveys conducted along the San Diego coast in 2004-05, but is considered a likely underestimate,
  as it does not reflect that approximately 35 percent of dolphins encountered lack identifiable dorsal fin marks (Defran and Weller, 1999). If 35
  percent of all animals lack distinguishing marks, then the true population size would be closer to 450-500 animals (Carretta et al., 2014).
\6\ Includes annual Russian harvest of 123 whales.

Potential Effects of the Specified Activity on Marine Mammals

    In our Federal Register notice of proposed authorization associated 
with the first-year IHA (78 FR 30873; May 23, 2013), we described in 
detail the potential effects of the Navy's planned activity on marine 
mammals, including general background information on sound and marine 
mammal hearing and a description of sound sources and ambient sound. 
Rather than reprint the information here, we refer the reader to that 
document. We also provided brief definitions of relevant acoustic 
terminology in our notice of proposed authorization associated with the 
second-year IHA (79 FR 53026; September 5, 2014).

Anticipated Effects on Habitat

    We described potential impacts to marine mammal habitat, including 
effects to prey and to foraging habitat, in detail in our Federal 
Register notice of proposed authorization associated with the first-
year IHA (78 FR 30873; May 23, 2013). In summary, given the short daily 
duration of sound associated with individual pile driving events and 
the relatively small areas being affected, pile driving activities 
associated with the planned action are not likely to have a permanent, 
adverse effect on any fish habitat, or populations of fish species. The 
area around NBPL is heavily altered with significant levels of 
industrial and recreational activity, and is unlikely to harbor 
significant amounts of forage fish. Thus, any impacts to marine mammal 
habitat are not expected to cause significant or long-term consequences 
for individual marine mammals or their populations.

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable 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.
    We described a proposed suite of mitigation measures in our Federal 
Register notice of proposed authorization (79 FR 53026; September 5, 
2014). Those mitigation measures were included as conditions in the IHA 
issued to the Navy, which is available on the Internet at: 
www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. Please review 
those documents for information about the specific measures required of 
the Navy.
    We carefully evaluated the Navy's proposed mitigation measures and 
considered their effectiveness in past implementation to determine 
whether they are likely to effect the least practicable impact on the 
affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures included consideration of the 
following factors in relation to one another: (1) The manner in which, 
and the degree to which, the successful implementation of the measure 
is expected to minimize adverse impacts to marine mammals; (2) the 
proven or likely efficacy of the specific measure to minimize adverse 
impacts as planned; and (3) the practicability of the measure for 
applicant implementation.
    Based on our evaluation of the Navy's proposed measures, we have 
determined that the mitigation measures described in our notice of 
proposed authorization 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 IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
incidental take authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area.
    The Navy submitted an Acoustic and Marine Species Monitoring Plan 
(available at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm). We described the monitoring requirements in detail 
in our Federal Register notice of proposed authorization (79 FR 53026; 
September 5, 2014). Those requirements were included as conditions in 
the IHA issued to the Navy, available at the same location on the 
Internet. Please review those documents for information about the 
specific measures required of the Navy. In addition, monitoring results 
from the previous IHA were described in detail in our notice of 
proposed authorization and are not repeated here.
    We made one substantive change from the proposed measures described 
in our Federal Register notice of proposed authorization to those 
included in the final IHA. Instead of requiring at least three vessel-
based observers for all pile driving activities, as called for in the 
proposed IHA, the Navy will be required to have a minimum of two 
vessel-based observers, and a total of three to seven observers, for 
all pile driving activities. The total three to seven observers 
includes (1) a minimum of one observer stationed at the active pile 
driving rig in order to monitor the shutdown zones; (2) a minimum of 
two vessel-based observers; and (3) a minimum of one shore-based 
observer located at the pier work site during impact pile driving. This 
change was made to more accurately reflect changes made to the second-
year monitoring plan in response to lessons learned during the first 
year of monitoring, and we believe it to represent the most effective 
alignment of monitoring assets. It is not expected to impact observer 
coverage and is expected to increase the effectiveness of the 
monitoring, and thus does not change our analysis or conclusions 
described in the Federal Register notice announcing our proposed IHA.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of the MMPA defines ``harassment'' as: ``. . . any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild [Level A harassment]; 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering [Level B harassment].''
    All anticipated takes would be by Level B harassment resulting from 
vibratory and impact pile driving and involving temporary changes in

[[Page 65384]]

behavior. The planned mitigation and monitoring measures are expected 
to minimize the possibility of injurious or lethal takes such that take 
by Level A harassment, serious injury, or mortality is considered 
extremely unlikely. However, it is unlikely that injurious or lethal 
takes would occur even in the absence of the planned mitigation and 
monitoring measures.
    If a marine mammal responds to a stimulus by changing its behavior 
(e.g., through relatively minor changes in locomotion direction/speed 
or vocalization behavior), the response may or may not constitute 
taking at the individual level, and is unlikely to affect the stock or 
the species as a whole. However, if a sound source displaces marine 
mammals from an important feeding or breeding area for a prolonged 
period, impacts on animals or on the stock or species could potentially 
be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Given 
the many uncertainties in predicting the quantity and types of impacts 
of sound on marine mammals, it is common practice to estimate how many 
animals are likely to be present within a particular distance of a 
given activity, or exposed to a particular level of sound.
    This practice potentially overestimates the numbers of marine 
mammals taken, in part because it is often difficult to distinguish 
between the individuals harassed and incidents of harassment. In 
particular, for stationary activities, it is more likely that some 
smaller number of individuals may accrue a number of incidents of 
harassment per individual than for each incident to accrue to a new 
individual, especially if those individuals display some degree of 
residency or site fidelity and the impetus to use the site (e.g., 
because of foraging opportunities) is stronger than the deterrence 
presented by the harassing stimulus.
    The project area is not believed to be particularly important 
habitat for marine mammals, nor is it considered an area frequented by 
marine mammals, with the exception of California sea lions, which are 
attracted to nearby haul-out opportunities. Sightings of other species 
are relatively rare. Therefore, behavioral disturbances that could 
result from anthropogenic sound associated with these activities are 
expected to affect only a relatively small number of individual marine 
mammals, although those effects could be recurring over the life of the 
project if the same individuals remain in the project vicinity.
    The Navy requested authorization for the potential incidental 
taking of small numbers of California sea lions, harbor seals, 
bottlenose dolphins, common dolphins, and gray whales in San Diego Bay 
and nearby waters that may result from pile driving during construction 
activities associated with the fuel pier replacement project. In order 
to estimate the potential incidents of take that may occur incidental 
to the specified activity, we first estimated the extent of the sound 
field that may be produced by the activity and then considered that in 
combination with information about marine mammal density or abundance 
in the project area. We provided detailed information on applicable 
sound thresholds for determining effects to marine mammals and 
described the information used in estimating the sound fields, the 
available marine mammal density or abundance information, and the 
method of estimating potential incidents of take, in our Federal 
Register notice of proposed authorization (79 FR 53026; September 5, 
2014). That information is unchanged, and our take estimates were 
calculated in the same manner and on the basis of the same information 
as what was described in the Federal Register notice. Measured 
distances to relevant thresholds are shown in Table 4 and total 
estimated incidents of take are shown in Table 5. Please see our 
Federal Register notice of proposed authorization (79 FR 53026; 
September 5, 2014) for full details of the process and information used 
in estimating potential incidents of take.

                                                   Table 4--Measured Distances to Relevant Thresholds
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          Distance to threshold in meters
                        Activity                         -----------------------------------------------------------------------------------------------
                                                              190 dB          180 dB          160 dB          120 dB          100 dB           90 dB
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impact driving, steel piles (measured)..................              75             450           2,500             n/a              71             233
Vibratory driving, steel piles (measured)...............             <10             <10             n/a           3,000             n/a             n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------


                              Table 5--Calculations for Incidental Take Estimation
----------------------------------------------------------------------------------------------------------------
                                                                 Total proposed authorized takes \3\ (% of total
                    Species                      Abundance \1\                       stock)
----------------------------------------------------------------------------------------------------------------
California sea lion...........................             175  23,625 (8.0).
Harbor seal...................................               7  945 (3.1).
Bottlenose dolphin............................               3  405 (81.0).\4\
Common dolphin................................               6  810 (0.8 [LB]/0.2 [SB]).\5\
Gray whale....................................           \2\ 1  90 (0.5).
----------------------------------------------------------------------------------------------------------------
\1\ Best available species- and season-specific density estimates were described in our notice of proposed
  authorization. With the exception of the gray whale (see footnote 2 below), we have determined that in all
  cases a site-specific abundance estimate is the most appropriate information to use in estimating take.
\2\ Product of density (0.115 animals/km\2\) and largest ZOI (5.7 km\2\) rounded to nearest whole number.
\3\ Best abundance numbers multiplied by expected days of activity (135) to produce take estimate. Calculation
  for gray whale assumes ninety days rather than 135.
\4\ Total stock assumed to be 500 for purposes of calculation. See Table 3.
\5\ LB = long-beaked; SB = short-beaked.


[[Page 65385]]

Analyses and Determinations

Negligible Impact Analysis

    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.'' 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, we consider other factors, such as the likely nature of any 
responses (e.g., intensity, duration), the context of any responses 
(e.g., critical reproductive time or location, migration), as well as 
the number and nature of estimated Level A harassment takes, the number 
of estimated mortalities, and effects on habitat.
    Pile driving activities associated with the pier replacement 
project, as outlined previously, have the potential to disturb or 
displace marine mammals. Specifically, the specified activities may 
result in take, in the form of Level B harassment (behavioral 
disturbance) only, from underwater sounds generated from pile driving. 
Potential takes could occur if individuals of these species are present 
in the ensonified zone when pile driving is happening.
    No injury, serious injury, or mortality is anticipated given the 
nature of the activity and measures designed to minimize the 
possibility of injury to marine mammals. The potential for these 
outcomes is minimized through the construction method and the 
implementation of the planned mitigation measures. Specifically, 
vibratory hammers will be the primary method of installation, and this 
activity does not have significant potential to cause injury to marine 
mammals due to the relatively low source levels produced (site-specific 
acoustic monitoring data show no source level measurements above 180 dB 
rms) and the lack of potentially injurious source characteristics. 
Impact pile driving produces short, sharp pulses with higher peak 
levels and much sharper rise time to reach those peaks. When impact 
driving is necessary, required measures (implementation of shutdown 
zones) significantly reduce any possibility of injury. Given sufficient 
``notice'' through use of soft start (for impact driving), marine 
mammals are expected to move away from a sound source that is annoying 
prior to its becoming potentially injurious. The likelihood that marine 
mammal detection ability by trained observers is high under the 
environmental conditions described for San Diego Bay (approaching one 
hundred percent detection rate, as described by trained biologists 
conducting site-specific surveys) further enables the implementation of 
shutdowns to avoid injury, serious injury, or mortality.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
increased swimming speeds, increased surfacing time, or decreased 
foraging (if such activity were occurring) (e.g., Thorson and Reyff, 
2006; HDR, 2012; Lerma, 2014). Most likely, individuals will simply 
move away from the sound source and be temporarily displaced from the 
areas of pile driving, although even this reaction has been observed 
primarily only in association with impact pile driving. In response to 
vibratory driving, pinnipeds (which may become somewhat habituated to 
human activity in industrial or urban waterways) have been observed to 
orient towards and sometimes move towards the sound. The pile driving 
activities analyzed here are similar to, or less impactful than, 
numerous other construction activities conducted in San Francisco Bay 
and in the Puget Sound region, which have taken place with no reported 
injuries or mortality to marine mammals, and no known long-term adverse 
consequences from behavioral harassment. Repeated exposures of 
individuals to levels of sound that may cause Level B harassment are 
unlikely to result in hearing impairment or to significantly disrupt 
foraging behavior. Thus, even repeated Level B harassment of some small 
subset of the overall stock is unlikely to result in any significant 
realized decrease in fitness for the affected individuals, and thus 
would not result in any adverse impact to the stock as a whole. Level B 
harassment will be reduced to the level of least practicable impact 
through use of mitigation measures described herein and, if sound 
produced by project activities is sufficiently disturbing, animals are 
likely to simply avoid the project area while the activity is 
occurring.
    In summary, this negligible impact analysis is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality may reasonably be considered discountable; (2) the 
anticipated incidents of Level B harassment consist of, at worst, 
temporary modifications in behavior; (3) the absence of any significant 
habitat within the project area, including rookeries, significant haul-
outs, or known areas or features of special significance for foraging 
or reproduction; and (4) the presumed efficacy of the planned 
mitigation measures in reducing the effects of the specified activity 
to the level of least practicable impact. In addition, these stocks are 
not listed under the ESA or considered depleted under the MMPA. In 
combination, we believe that these factors, as well as the available 
body of evidence from other similar activities, demonstrate that the 
potential effects of the specified activity will have only short-term 
effects on individuals. The specified activity is not expected to 
impact rates of recruitment or survival and will therefore not result 
in population-level impacts. 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 
planned monitoring and mitigation measures, we find that the total 
marine mammal take from Navy's pier replacement activities will have a 
negligible impact on the affected marine mammal species or stocks.

Small Numbers Analysis

    The number of incidents of take proposed for authorization for 
these stocks, with the exception of the coastal bottlenose dolphin (see 
below), would be considered small relative to the relevant stocks or 
populations (see Table 5) even if each estimated taking occurred to a 
new individual. This is an extremely unlikely scenario as, for 
pinnipeds occurring at the NBPL waterfront, there will almost certainly 
be some overlap in individuals present day-to-day and in general, there 
is likely to be some overlap in individuals present day-to-day for 
animals in estuarine/inland waters.
    The numbers of authorized take for bottlenose dolphins are higher 
relative to the total stock abundance estimate and would not represent 
small numbers if a significant portion of the take was for new 
individuals. However, these numbers represent the estimated incidents 
of take, not the number of individuals taken. That is, it is likely 
that a relatively small subset of California coastal bottlenose 
dolphins would be incidentally harassed by project activities. 
California coastal bottlenose dolphins range from San

[[Page 65386]]

Francisco Bay to San Diego (and south into Mexico), and the specified 
activity would be stationary within an enclosed water body that is not 
recognized as an area of any special significance for coastal 
bottlenose dolphins (and is therefore not an area of dolphin 
aggregation, as evident in Navy observational records). We therefore 
believe that the estimated numbers of takes, were they to occur, likely 
represent repeated exposures of a much smaller number of bottlenose 
dolphins and that, based on the limited region of exposure in 
comparison with the known distribution of the coastal bottlenose 
dolphin, these estimated incidents of take represent small numbers of 
bottlenose dolphins.
    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, we find that small numbers of marine mammals will be taken 
relative to the populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, we have determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Endangered Species Act (ESA)

    The Navy initiated informal consultation under section 7 of the ESA 
with NMFS Southwest Regional Office (now West Coast Regional Office) on 
March 5, 2013. NMFS concluded on May 16, 2013, that the proposed action 
may affect, but is not likely to adversely affect, western North 
Pacific (WNP) gray whales. The Navy has not requested authorization of 
the incidental take of WNP gray whales and no such authorization is 
proposed, and there are no other ESA-listed marine mammals found in the 
action area. Therefore, no additional consultation under the ESA is 
required.

National Environmental Policy Act (NEPA)

    In compliance with the NEPA of 1969 (42 U.S.C. 4321 et seq.), as 
implemented by the regulations published by the Council on 
Environmental Quality (CEQ; 40 CFR parts 1500-1508), the Navy prepared 
an Environmental Assessment (EA) to consider the direct, indirect, and 
cumulative effects to the human environment resulting from the pier 
replacement project. We made the Navy's EA available to the public for 
review and comment, in relation to its suitability for adoption in 
order to assess the impacts to the human environment of issuance of an 
IHA to the Navy. In compliance with NEPA, the CEQ regulations, and NOAA 
Administrative Order 216-6, we subsequently adopted that EA and signed 
a Finding of No Significant Impact (FONSI) on July 8, 2013.
    We have reviewed the Navy's application for a renewed IHA for 
ongoing construction activities for 2014-15 and the 2013-14 monitoring 
report. Based on that review, we have determined that the proposed 
action is very similar to that considered in the previous IHA. In 
addition, no significant new circumstances or information relevant to 
environmental concerns have been identified. Thus, we have determined 
that the preparation of a new or supplemental NEPA document is not 
necessary, and, after review of public comments, reaffirm our 2013 
FONSI. The 2013 NEPA documents are available for review at 
www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Authorization

    As a result of these determinations, we have issued an IHA to the 
Navy for conducting the described pier maintenance activities in San 
Diego Bay, from October 8, 2014 through October 7, 2015, provided the 
previously described mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: October 29, 2014.
Wanda L. Cain,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2014-26195 Filed 11-3-14; 8:45 am]
BILLING CODE 3510-22-P