Takes of Marine Mammals Incidental to Specified Activities; Construction Activities at the Children's Pool Lifeguard Station at La Jolla, California, 39999-40016 [2015-16965]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 80, Number 133 (Monday, July 13, 2015)]
[Notices]
[Pages 39999-40016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16965]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD807


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).

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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 for an IHA 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, 2015 to June 27, 2016.

ADDRESSES: A copy of the IHA and the IHA application are available by 
writing to Jolie Harrison, Chief, Permits and Conservation Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910 or by telephone to 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/construction.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.) 
direct 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.
    An 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.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the United States can apply for an authorization 
to incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for 
NMFS's review of an application followed by a 30-day public notice and 
comment period on any proposed authorizations for the incidental 
harassment of small numbers of marine mammals. Within 45 days of the 
close of the public comment period, NMFS must either issue or deny the 
authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment].

Summary of Request

    On February 25, 2015, 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 on April 9, 2015. NMFS published a notice making preliminary 
determinations and proposing to issue an IHA on May 19,

[[Page 40000]]

2015 (80 FR 28588). The notice initiated a 30-day public comment 
period.
    The City of San Diego will undertake the construction activities 
between June 2015 and June 2016 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. Because the construction activities were 
subject to delays and cannot be completed by June 27, 2015, the City of 
San Diego has requested a renewal of the 2014 to 2015 IHA for an 
additional year. The construction activities are planned to take place 
during June 2015 to June 2016 in La Jolla, CA. Regarding the previous 
IHA, NMFS published a notice in the Federal Register (79 FR 8160) on 
February 11, 2014, making preliminary determinations and proposing to 
issue an IHA. The notice initiated a 30-day public comment period. On 
June 6, 2014, NMFS published a notice in the Federal Register (79 FR 
32699) announcing the issuance of an IHA. Additional information on the 
construction activities at the Children's Pool Lifeguard Station is 
contained in the IHA application, which is available upon request (see 
ADDRESSES).
    Also, 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 to 2014 and construction of the 
new lifeguard station is expected to be completed in 2015 to 2016. 
Because the previously existing lifeguard station was demolished and 
closed to entry, a temporary lifeguard tower was moved onto the bluff 
near the previous lifeguard station.

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, 2015, (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, 2015. 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 2015. The exact dates of the planned 
activities depend on logistics and scheduling. The IHA is valid through 
June 2016 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 and removal of the existing 
lifeguard station was completed in 2013 to 2014 and construction of the 
new lifeguard station is expected to be completed in 2015 to 2016. The 
building contractor utilized excavators, backhoes, concrete saws, and 
jackhammers for demolishing the previous structure and has hauled the 
waste materials to an offsite landfill where it was separated into 
recycled content and waste. During the second year of construction 
(2014 to 2015) and in the same footprint as the old lifeguard station, 
the new lifeguard station is being constructed within and adjacent to 
the previous facility. Rough plumbing and electrical have been laid; 
the foundation has been poured and some of the steel structure has been 
erected. 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 270[deg]

[[Page 40001]]

view of the beach and nearby reef areas) 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 
initially estimated to take approximately 7 months (148 actual 
demolition and construction days) and be completed by December 15, 
2013; however, demolition and construction did not start until later 
than previously planned in June 2013 and June 2014 due to the presence 
of nesting migratory birds (i.e., Western seagulls [Larus occidentalis] 
and eggs/chicks). 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 or 2014. The 
City of San Diego completed phases 1 to 4 during 2013 and 2014. During 
the 2013 to 2014 construction window, the temporary on-site tower was 
removed and two temporary towers were installed nearby (one about 500 m 
[1,640.4 ft] south of the construction site and another about 1,000 m 
[3,280.8 ft] east of the construction site to serve citizens utilizing 
the beaches and ocean waters nearby. Construction of phases 5 to 9 will 
commence in June 2015, 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 2015 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 2015 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 2015 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 2015 and has a maximum source level 
of 110 dB.
    (9.) Final inspection and 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 2015 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 and 2014, measured sound levels from the 
demolition equipment reaching the pinnipeds did not exceed 
approximately 90 dB re 20 [mu]Pa 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. Table 1 of the City of San Diego's monitoring report provides 
mean sound and mean distance from sound sources by the type of 
equipment and monitoring location. The City of San Diego intends to 
continue 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/construction.htm.

Comments and Responses

    A notice of preliminary determinations and proposed IHA for the 
City of San Diego's construction activities as published in the Federal 
Register on May 19, 2015 (80 FR 28588). During the 30-day public 
comment period, NMFS received comments from the Marine Mammal 
Commission (Commission) and one private citizen. The comments are 
posted online at: https://www.nmfs.noaa.gov/pr/permits/

[[Page 40002]]

incidental/construction.htm. Following are the substantive comments and 
NMFS's responses:
    Comment 1: The Commission concurs with NMFS's preliminary findings 
and recommends that NMFS issue the requested IHA, subject to inclusion 
of the proposed mitigation, monitoring, and reporting measures.
    Response: NMFS concurs with the Commission's recommendation and has 
issued the IHA to the City of San Diego.
    Comment 2: One private citizen did not oppose the issuance of an 
IHA by NMFS and the conduct of the construction activities at the 
Children's Pool Lifeguard Station at La Jolla, CA. The commenter 
provided many descriptions and photographs of the public viewing and 
interacting with Pacific harbor seals on the beach and in the water at 
the Children's Pool. Also, the commenter provided behavioral 
descriptions of harbor seals and how they may be acclimated to human 
presence and noise at this site. Many of the commenter's statements 
were not germane to the proposed IHA or have not identified or provided 
scientific publications supporting their statement which limits our 
ability to respond to commenter's statements.
    Response: As described in detail in the notice of the proposed IHA 
(80 FR 28588, May 19, 2015), as well as in this document, NMFS does not 
believe the City of San Diego's construction activities will cause 
injury, serious injury, or mortality to marine mammals, and no take by 
injury, serious injury, or mortality is authorized. The required 
monitoring and mitigation measures that the City of San Diego will 
implement during the construction activities will further reduce the 
potential impacts on marine mammals to the lowest level practicable. 
NMFS anticipates only behavioral disturbance to occur during the 
conduct of the construction activities at the Children's Pool Lifeguard 
Station in La Jolla, CA.

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 planned 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, occurrence, range, abundance, and conservation status in the 
nearshore area of the general region of the project area.

  Table 1--The Habitat, Occurrence, Range, 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
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                                                                                                Best population
             Species                    Habitat           Occurrence             Range        estimate (minimum)        ESA \2\            MMPA \3\
                                                                                                      \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes:
Gray whale (Eschrichtius          Coastal and shelf.  Transient during    North Pacific       20,990 (20,125)...  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................  NC
                                                       annual basis.                           Coast Transient    EN--Southern        D--Southern
                                                                                               stock.              resident            Resident and AT1
                                                                                                                   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   30,968 (27,348)--   NL................  NC.
 vitulina richardii).                                                      to polar regions    California stock.
                                                                           in Northern
                                                                           Hemisphere.
Northern elephant seal (Mirounga  Coastal, pelagic    Common............  Eastern and         179,000 (81,368)--  NL................  NC.
 angustirostris).                  when not                                Central North       California
                                   migrating.                              Pacific--Alaska     breeding stock.
                                                                           to Mexico.

[[Page 40003]]

 
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. 
During 2014, the City of San Diego observed 22 California sea lions 
(during 19 days) and 30 juvenile elephant seals (during 29 days) at the 
Children's Pool. Adult sea lions were also observed hauling out on 
rocks and cliffs near the Children's Pool.

Pacific Harbor Seal

    Harbor seals are widely distributed in the North Atlantic and North 
Pacific. Two subspecies exist in the Pacific Ocean: P. v. stejnegeri in 
the western North Pacific near Japan, and P. v. richardii in the 
eastern North Pacific. The subspecies in the eastern North Pacific 
Ocean inhabits near-shore coastal and estuarine areas from Baja 
California, Mexico, to the Pribilof Islands in Alaska. These seals do 
not make extensive pelagic migrations, but do travel 300 to 500 
kilometers (km) (162 to 270 nautical miles [nmi]) on occasion to find 
food or suitable breeding areas (Herder, 1986; Harvey and Goley, 2011). 
Previous assessments of the status of harbor seals have recognized 
three stocks along the west coast of the continental U.S.: (1) 
California, (2) Oregon and Washington outer coast waters, and (3) 
inland waters of Washington. An unknown number of harbor seals also 
occur along the west coast of Baja California, at least as far south as 
Isla Asuncion, which is about 100 miles south of Punta Eugenia. Animals 
along Baja California are not considered to be a part of the California 
stock because it is not known if there is any demographically 
significant movement of harbor seals between California and Mexico and 
there is no international agreement for joint management of harbor 
seals. Harbor seal presence at haul-out sites is seasonal with peaks in 
abundance during their pupping and molting periods. Pupping and molting 
periods are first observed to the south and progress northward up the 
coast with time (e.g., January to May near San Diego, April to June in 
Oregon and Washington) (Jeffries, 1984; Jeffries, 1985; Huber et al., 
2001; Hanan, 2004; Hanan & Associates, 2011).
    In California, approximately 400 to 600 harbor seal haul-out sites 
are distributed along the mainland coast and on offshore islands, 
including intertidal sandbars and ledges, rocky shores and islets, and 
beaches (Harvey et al., 1995; Hanan, 1996; Lowry et al., 2008). 
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

[[Page 40004]]

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 
City of San Diego observed 12 counts totaling more than 200 and a 
maximum of 238 animals during the 2014 to 2015 construction window. 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 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. Based on monitoring 
during 2013 to 2014, Dr. Hanan estimates that similar numbers of harbor 
seals hauling-out at Children's Pool during 2011 and will expect 
similar numbers in 2015 to 2016.
    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.

[[Page 40005]]

    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, although in the past two years births have been 
reported at La Jolla Cove (about 0.75 km [0.47 miles] east of 
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). Spatial 
segregation in foraging areas between males and females is evident from 
satellite tag data (Le Beouf et al., 2000). Males migrate to the Gulf 
of Alaska and western Aleutian Islands along the continental shelf to 
feed on benthic prey, while females migrate to pelagic areas in the 
Gulf of Alaska and the central North Pacific to feed on pelagic prey 
(Le Beouf et al., 2000). 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 have 
recovered after being nearly hunted to extinction (Stewart et al., 
1994). Northern elephant seals underwent a severe population bottleneck 
and loss of genetic diversity when the population was reduced to an 
estimated 10 to 30 individuals (Hoelzel et al., 2002). 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 simultaneously. 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 counts of elephant seals at 
U.S. rookeries in 2010, Lowry et al. (2014) reported that 40,684 pups 
were born. Lowry et al. (2014) applied a multiplier of 4.4 to 
extrapolate from total pup counts to a population estimate of 
approximately 179,000 elephant seals. This multiplier is derived from 
life tables based on published elephant seal fecundity and survival 
rates, and reflects a population with approximately 23% pups (Cooper 
and Stewart, 1983; Le Boeuf and Reiter, 1988; Hindell 1991; Huber et 
al., 1991; Reiter and Le Boeuf, 1991; Clinton and Le Boeuf, 1993; Le 
Boeuf et al., 1994; Pistorius and Bester, 2002; McMahon et al., 2003; 
Pistorius et al., 2004; Condit et al., 2014). The minimum population 
size for northern elephant seals in 2010 can be estimated very 
conservatively as 81,368, which is equal to twice the observed pup 
count (to account for the pups and their mothers). The population is 
reported to have grown at 3.8% annually since 1988 (Lowry et al., 
2014). 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 planned 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 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;

[[Page 40006]]

     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 planned 
action area. Of the 3 pinniped species likely to occur in the City of 
San Diego's planned 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 and 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 1990's (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 notice of the proposed IHA (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 (Hanan & 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 
construction activities is expected by the 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 (except during pupping season 
when the beach has been closed to the public). 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

[[Page 40007]]

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 will 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 a.m. to 7 p.m. to help assure that 
the project can be completed during the 2015 construction window. 
Harbor seals typically have the highest daily or hourly haul-out period 
during the afternoon from 3 p.m. to 6 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. The City of San Diego does not believe 
that a complete barrier can be constructed to hide all of the 
construction activities. Once the walls of the lifeguard station 
building are in place, much of the construction activities will take 
place on the bluff above the beach (thus out of sight) and inside the 
building, which will provide a visual and partial sound barrier.

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.

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, 2015. 
The IHA may extend to June 1 through June 27, 2016 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

[[Page 40008]]

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] TN13JY15.170

    More information regarding the City of San Diego's monitoring and 
mitigation measures for the planned construction activities at the 
Children's Pool Lifeguard Station can be found in the IHA application.

Mitigation Conclusions

    NMFS has 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).
    (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 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

[[Page 40009]]

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 has developed a monitoring plan (see Appendix 
I, Mitigated Negative Declaration in the IHA application) based on 
discussions between the project biologist, Dr. Doyle Hanan, and NMFS 
biologists. The plan has been vetted by City of San Diego planners and 
reviewers. The plan has been formally presented to the public for 
review and comment. The City of San Diego has responded in writing and 
in public testimony (see City of 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 in the 30 to 130 dB re 20 [micro]Pa range), 
and post-construction monitoring. The City of San Diego would 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 would observe the construction activities from a 
station along the breakwater wall and from the base of the cliff below 
the construction area. PSOs would be on site approximately 30 minutes 
before the start of construction activities and would 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 would be maintained for periodic 
summary reports to the City of San Diego and to NMFS. Observations 
would 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 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 would have a program of onsite PSOs that would 
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.

[[Page 40010]]

    (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 would 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 
would 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 would 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 would 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 would 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 would include a summary 
of the information gathered pursuant to the monitoring requirements set 
forth in the IHA, including dates and times of operations and all 
marine mammal sightings (dates, times, locations, species, behavioral 
observations [activity, group cohesiveness, direction and speed of 
travel, etc.], tidal stage, weather conditions, Beaufort sea state and 
wind force, associated construction activities). A final report must be 
submitted to the Regional Administrator within 30 days after receiving 
comments from NMFS on the draft final report. If no comments are 
received from NMFS, the draft final report would be considered to be 
the final report.
    While the IHA 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 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 (562-980-3230). 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 to the West Coast 
Regional Stranding Coordinator (562-980-3230). 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.

[[Page 40011]]

    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 to the West 
Coast Regional Stranding Coordinator (562-980-3230) 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

2013 to 2014

    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 re 20 [micro]Pa 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).

2014 to 2015

    Hanan & Associates, Inc., on behalf of the City of San Diego, 
conducted marine mammal and in-air sound monitoring at seven locations 
during demolition and construction activities at the Children's Pool 
Lifeguard Station in La Jolla, California from August 6, 2014 to March 
15, 2015. Construction activities began on August 6, 2014 and were 
halted for the Pacific harbor seal pupping season (December 15, 2014 to 
June 1, 2015). During 127 days of visual and acoustic observations, 
Hanan & Associates counted a total of 63,598 Pacific harbor seals and 
27,844 people. During the 2014 demolition and construction activities, 
Hanan & Associates observed a total of 20,259 takes by Level B 
harassment (i.e., alerts, movements, and flushes) that could be 
attributed to demolition and construction activities (7,424 takes), the 
general public (10,000 takes), and other sources (2,835 takes). As of 
March 13, 2015, at least 60 harbor seal pups (including 6 still or 
premature 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 24 sightings of cetaceans (gray whales, 
common and bottlenose dolphins), 366 sightings of California sea lions 
(at Seal Rock, Children's Pool beach, South Casa Beach, and on the 
reef), and 1 northern elephant seals (1 juvenile on Children's Pool 
beach) at the Children's Pool. One dead adult and one dead juvenile 
California sea lion were sighted on the Children's Pool beach after the 
start of the beach closure and after the construction activities 
stopped for the pupping season. These strandings were reported to NMFS.
    Hanan & Associates recorded mean in-air sound levels of 68.9 dB re 
20 [micro]Pa (range of 51.5 to 97.2 dB re 20 [micro]Pa) during non-
construction activities and 71.3 dB re 20 [micro]Pa (range of 49.4 to 
102.7 dB re 20 [micro]Pa) during construction activities. During 2014, 
measured sound levels from the construction equipment reaching the 
pinnipeds did not exceed approximately 90 dB re 20 [micro]Pa at the 
haul-out area closest to the construction activities.
    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 
reports. The 2013 to 2014 and 2014 to 2015 monitoring reports can be 
found online at: https://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm#childrenspool.
    Figure 2. Daily peak counts and long-term trends with a 95% 
confidence interval of Pacific harbor seals at Children's Pool from 
June 2014 to February 2015 based on monitoring at the site by Hanan & 
Associates.

[[Page 40012]]

[GRAPHIC] [TIFF OMITTED] TN13JY15.171

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].

Table 2--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)
                                   TTS).              190 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).
                              In-Air Sound
------------------------------------------------------------------------
Level A harassment..............  NA................  NA

[[Page 40013]]

 
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).
------------------------------------------------------------------------
NA = Not available or not assessed.

    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 planned construction activities scheduled to begin in June 
2015, 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 3. 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] TN13JY15.172

    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

[[Page 40014]]

or two individuals). The City of San Diego requests the authority to 
incidentally take (i.e., exposures) 10,000 Pacific harbor seals, 100 
California sea lions, and 25 northern elephant seals, which 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 3.

    Table 3--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  30,968--Californ            1.93  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  179,000--Califor           <0.01  Increasing 3.8%
                                                                nia breeding                      annually since
                                                                stock.                            1988
----------------------------------------------------------------------------------------------------------------

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 would 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 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, effects on habitat, and the status 
of the species.
    In making a negligible impact determination, NMFS evaluated factors 
such as:
    (1) The number of anticipated serious injuries or mortalities;
    (2) The number and nature of anticipated injuries;
    (3) The number, nature, intensity, and duration of Level B 
harassment; and
    (4) 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);
    (5) The status of the stock or species of marine mammals (e.g., 
depleted, ESA-listed, decreasing, increasing, stable, impact relative 
to the size of the population);
    (6) Impacts on habitat affecting rates of recruitment/survival; and
    (7) The effectiveness of monitoring and mitigation measures.
    To avoid repetition, the discussion of NMFS's analyses applies to 
all the species or stocks for which take is being authorized (listed in 
Table 3), given that the anticipated effects of these construction 
activities on marine mammals are expected to be relatively similar in 
nature in this case. Additionally, there is no information about the 
nature or severity of the impacts, or the size, status, or structure of 
any species or stock that would lead to a different analysis for this 
activity, else species-specific factors would be identified and 
analyzed. NMFS had determined that the specified activities associated 
with the construction activities are not likely to cause long-term 
behavioral disturbance, PTS, or other (non-auditory) injury, serious 
injury, or death, based on the analysis contained in the notice of the 
proposed IHA (80 FR 28588, May 19, 2015). NMFS also considered the 
following factors:
    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 would 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,

[[Page 40015]]

there is a high likelihood that many of the harbor seals present during 
the construction activities would 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. Construction 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.
    Table 3 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 would 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 would 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 would 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 would 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 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. NMFS makes its small numbers 
determination based on the numbers or proportion of marine mammals that 
will be taken relative to the populations of the affected species or 
stocks. It is estimated that up to 600 individual Pacific harbor seals, 
2 individual California sea lions, and 1 northern elephant seal would 
be taken (multiple times) by Level B harassment, which would be 
approximately 1.93, less than 0.01, and less than 0.01% of the 
respective California, U.S., and California breeding stocks. The

[[Page 40016]]

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 2015 to June 2016, 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 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.

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. 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 construction activities from June 2013 to June 
2014. The currently planned construction activities that will be 
covered by the IHA from June 2015 to June 2016 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 construction 
activities at the Children's Pool Lifeguard Station at La Jolla, CA, 
incorporating the previously mentioned mitigation, monitoring, and 
reporting requirements.

    Dated: June 30, 2015.
Perry F. Gayaldo,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2015-16965 Filed 7-10-15; 8:45 am]
 BILLING CODE 3510-22-P