Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Pier Replacement Project, 62032-62044 [2015-26226]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 80, Number 199 (Thursday, October 15, 2015)]
[Notices]
[Pages 62032-62044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26226]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE057


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

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

ACTION: Notice; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to the 
U.S. Navy (Navy) to incidentally harass, by Level B harassment only, 
marine mammals during construction activities associated with a pier 
replacement project at Naval Base Point Loma, San Diego, CA.

DATES: This authorization is effective from October 8, 2015, through 
October 7, 2016.

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

SUPPLEMENTARY INFORMATION:

Availability

    An electronic copy of the Navy's application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing 
these documents, please call the contact listed above.

Background

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

Summary of Request

    On June 12, 2015, we received a request from the Navy for 
authorization to take marine mammals incidental to pile installation 
and removal associated with a pier replacement project in San Diego Bay 
at Naval Base Point Loma in San Diego, CA (NBPL). The Navy also 
submitted a separate monitoring plan and draft monitoring report 
pursuant to requirements of the previous IHA. The Navy submitted 
revised versions of the request on July 3 and July 26, 2015, a revised 
version of the monitoring plan on July 21, 2015, and a revised 
monitoring report on July 29, 2015. These documents were deemed 
adequate and complete. The pier replacement project is planned to occur 
over four years; this IHA covers only the third year of work and is 
valid for a period of one year, from October 8, 2015, through October 
7, 2016. Hereafter, use of the generic term ``pile driving'' may refer 
to both pile installation and removal unless otherwise noted.
    The use of both vibratory and impact pile driving is expected to 
produce underwater sound at levels that have the potential to result in 
behavioral harassment of marine mammals. Species with the expected 
potential to be present during all or a portion of the in-water work 
window include the California sea lion (Zalophus californianus), harbor 
seal (Phoca vitulina richardii), northern elephant seal (Mirounga 
angustirostris), gray whale (Eschrichtius robustus), bottlenose dolphin 
(Tursiops truncatus truncatus), Pacific white-sided dolphin 
(Lagenorhynchus obliquidens), Risso's dolphin (Grampus griseus), and 
either short-beaked or long-beaked common dolphins (Delphinus spp.). 
California sea lions are present year-round and are very common in the 
project area, while bottlenose dolphins and harbor seals are common and 
likely to be present year-round but with more variable occurrence in 
San Diego Bay. Gray whales may be observed in San Diego Bay 
sporadically during migration periods. The remaining species are known 
to occur in nearshore waters outside San Diego Bay, but are generally 
only rarely observed near or in the bay. However, recent observations 
indicate that these species may occur in the project area and therefore 
could potentially be subject to incidental harassment from the 
aforementioned activities.
    This is the third such IHA, following the IHAs issued effective 
from September 1, 2013, through August 31, 2014 (78 FR 44539) and from 
October 8, 2014, through October 7, 2015 (79 FR 65378). Monitoring 
reports are available on the Internet at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm and provide environmental information 
related to issuance of this IHA.

[[Page 62033]]

Description of the Specified Activity

Overview

    NBPL provides berthing and support services for Navy submarines and 
other fleet assets. The existing fuel pier serves as a fuel depot for 
loading and unloading tankers and Navy underway replenishment vessels 
that refuel ships at sea (``oilers''), as well as transferring fuel to 
local replenishment vessels and other small craft operating in San 
Diego Bay, and is the only active Navy fueling facility in southern 
California. Portions of the pier are over one hundred years old, while 
the newer segment was constructed in 1942. The pier as a whole is 
significantly past its design service life and does not meet current 
construction standards.
    Over the course of four years, the Navy plans to demolish and 
remove the existing pier and associated pipelines and appurtenances 
while simultaneously replacing it with a generally similar structure 
that meets relevant standards for seismic strength and is designed to 
better accommodate modern Navy ships. Demolition and construction are 
planned to occur in two phases to maintain the fueling capabilities of 
the existing pier while the new pier is being constructed. During the 
third year of construction (the specified activity considered under 
this proposed IHA), approximately 226 piles will be installed 
(including six 30-in steel pipe piles, 88 30 x 24-in concrete piles, 
and 132 16-in concrete-filled fiberglass piles). Demolition of the 
existing pier will continue concurrently, including the removal of 
approximately one hundred steel and concrete piles and twenty concrete-
filled steel caissons. Removals may occur by multiple means, including 
vibratory removal, pile cutter, dead pull, and diamond belt saw, as 
determined to be most effective. Construction work under this IHA is 
anticipated to require a total of 115 days of in-water work. All steel 
piles will be driven with a vibratory hammer for their initial 
embedment depths and finished with an impact hammer, as necessary.
    The planned actions with the potential to incidentally harass 
marine mammals within the waters adjacent to NBPL are vibratory and 
impact pile installation and removal of piles via pile cutter. 
Vibratory pile removal is not planned but could occur if deemed the 
most effective technique to remove a given pile; because this technique 
is not expected to occur we do not consider it separately in this 
document from vibratory pile driving. Concurrent use of multiple pile 
driving rigs is not planned; however, pile removal conducted as part of 
demolition activities (which could occur via a number of techniques) 
may occur concurrently with pile installation conducted as part of 
construction activities.

Dates and Duration

    The entire project is scheduled to occur from 2013-17; the planned 
activities that are planned to occur during the period of validity for 
this IHA, during the third year of work, would occur for one year. 
Under the terms of a memorandum of understanding (MOU) between the Navy 
and the U.S. Fish and Wildlife Service (FWS), all noise- and turbidity-
producing in-water activities in designated least tern foraging habitat 
are to be avoided during the period when least terns are present and 
engaged in nesting and foraging (a window from approximately May 1 
through September 15). However, it is possible that in-water work, as 
described below, could occur at any time during the period of validity 
of this IHA. The conduct of any such work would be subject to approval 
from FWS under the terms of the MOU. We expect that in-water work will 
primarily occur from October through April. In-water pile driving and 
removal work using pile cutters or vibratory drivers is limited to 115 
days in total under this IHA. Pile driving will occur during normal 
working hours (approximately 7 a.m. to 6 p.m.).

Specific Geographic Region

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

Detailed Description of Activities

    In order to provide context, we described the entire project in our 
Federal Register notice of proposed authorization associated with the 
first-year IHA (78 FR 30873; May 23, 2013). Please see that document 
for an overview of the entire fuel pier replacement project, or see the 
Navy's Environmental Assessment (2013) for more detail. In the notice 
of proposed authorization associated with the third-year IHA (80 FR 
53115; September 2, 2015) we provided an overview of relevant 
construction methods before describing only the specific project 
portions scheduled for completion during the third work window. We do 
not repeat that information here; please refer to that document for 
more information. Approximately 498 piles in total are planned to be 
installed for the project, including steel, concrete, and plastic 
piles. For the third year of work, approximately 226 steel and concrete 
piles will be installed. Tables 1 and 2 detail the piles to be 
installed and removed, respectively, under this IHA.

                                    Table 1--Details of Piles To Be Installed
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             Purpose                     Location          Planned timing         Pile type         Pile number
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Dolphin batter piles.............  North mooring......  Fall 2015..........  30-in steel pipe...               6
Fender piles.....................  Bayward side of new  Fall-Winter 2015...  24 x 30-in concrete              88
                                    pier.

[[Page 62034]]

 
Fender piles.....................  Bayward side of new  Fall-Winter 2015...  16-in concrete-                 132
                                    pier.                                     filled fiberglass.
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                 Table 2--Details of Piles To Be Removed
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                           Pile type                             Number
------------------------------------------------------------------------
Concrete fender piles (14-, 16-, and 24-in)...................        56
Plastic fender piles (13-in)..................................        34
Temporary steel piles (30-in).................................        12
Concrete-filled steel caissons................................        20
------------------------------------------------------------------------

Description of Work Accomplished

    During the first in-water work season, two primary activities were 
conducted: relocation of the Marine Mammal Program and the Indicator 
Pile Program (IPP). During the second in-water work season, the IPP was 
concluded and simultaneous construction of the new pier and demolition 
of the old pier begun. These activities were detailed in our Federal 
Register notice of proposed authorization (80 FR 53115; September 2, 
2015) and are not repeated here.

Comments and Responses

    We published a notice of receipt of the Navy's application and 
proposed IHA in the Federal Register on September 2, 2015 (80 FR 
53115). We received a letter from the Marine Mammal Commission; the 
Commission's comments and our responses are provided here, and the 
comments have been posted on the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. Please see the Commission's letter 
for background and rationale regarding these recommendations.
    Comment 1: The Commission recommends that we (1) authorize a small 
number of Level A harassment takes of California sea lions for 
construction activities at NBPL and (2) take a consistent approach in 
authorizing Level A harassment for other activities in which there is a 
potential for Level A harassment to occur (i.e., impact pile driving 
and seismic surveys).
    Response: California sea lions are abundant in the vicinity of the 
project area, and it is therefore difficult to assume as is typical 
that all animals will be observed either prior to entering the shutdown 
zone or immediately upon surfacing within the shutdown zone. Therefore, 
the Navy evaluated use of a buffered shutdown zone during the course of 
Year 2 construction activities. The Navy ultimately proposed use of a 
pinniped shutdown zone with radial distance twice as large as the 
modeled Level A harassment zone in its request for authorization 
related to Year 3 construction activities. The Commission commends the 
Navy for amending its mitigation measures using an adaptive approach, 
but notes that four of 107 sea lion sightings resulting in shutdown 
involved animals observed within the modeled zone, rather than within 
the larger buffered zone. We have previously authorized Level A 
harassment for activities where we believe that such take is likely 
unavoidable. The Commission therefore believes that authorization of 
Level A harassment is warranted and, further, that we should take a 
consistent approach to such authorizations across projects.
    We do not believe that the authorization of Level A harassment is 
warranted in this case. These four observations, within the relevant 
zone for impact driving of 30- and 36-in steel pipe piles, occurred 
over one hundred days of such activity and 238 driven piles. This gives 
a rate of 0.02 animals observed within the actual Level A zone per 
driven pile. While this rate would likely be highly variable, it does 
give an indication of the rarity of the event (i.e., an animal was not 
observed prior to traversing the buffer zone and entering the actual 
modeled zone). Only six days of similar pile driving (i.e., impact 
driving of 30-in steel pipe piles) is planned for Year 3. Based on the 
small number of piles associated with source levels that exceed the 
Level A harassment threshold, the low likelihood of an animal entering 
the actual Level A harassment zone, and the demonstrated success in 
implementation of the buffered shutdown zone, the Navy did not request 
authorization of Level A harassment, and we concur with that decision.
    We agree with the Commission's recommendation that we consider the 
need for authorization of Level A harassment consistently, but disagree 
that our decision here displays an inconsistent approach. We consider 
the need for authorization of Level A harassment on a case-by-case 
basis. Consistency does not demand that we reach the same outcome in 
all cases, but merely that we consider like factors consistently across 
actions.
    Comment 2: The Commission recommends that we develop criteria and 
provide guidance to applicants regarding the circumstances under which 
we will consider requests for Level A harassment takes under section 
101(a)(5)(D) of the MMPA.
    Response: We do not agree that formal criteria are necessary, but 
will continue to provide guidance to applicants regarding the need to 
consider Level A harassment authorization. As has been our practice, we 
will consider relevant factors consistently in reaching action-specific 
decisions.

Description of Marine Mammals in the Area of the Specified Activity

    There are four marine mammal species which are either resident or 
have known seasonal occurrence in the vicinity of San Diego Bay, 
including the California sea lion, harbor seal, bottlenose dolphin, and 
gray whale (see Figures 3-1 through 3-4 and 4-1 in the Navy's 
application). In addition, common dolphins (see Figure 3-4 in the 
Navy's application), the Pacific white-sided dolphin, Risso's dolphin, 
and northern elephant seals are known to occur in deeper waters in the 
vicinity of San Diego Bay and/or have been recently observed within the 
bay. Although the latter three species of cetacean would not generally 
be expected to occur within the project area, the potential for changes 
in occurrence patterns due to developing El Ni[ntilde]o conditions in 
conjunction with recent observations leads us to believe that 
authorization of incidental take is warranted. Common dolphins have 
been documented regularly at the Navy's nearby Silver Strand Training 
Complex, and were observed in the project area during both previous 
years of project activity. The Pacific white-sided dolphin has been 
sighted along a previously used transect on the opposite side of the 
Point Loma peninsula (Merkel and Associates, 2008) and there were 
several observations of Pacific white-sided dolphins during Year 2 
monitoring. Risso's dolphin is fairly common in southern California 
coastal waters (e.g., Campbell et al., 2010), and could occur in the 
bay. Northern elephant seals are included based on their continuing 
increase in numbers along the Pacific coast (Carretta et al., 2015) and 
the likelihood that animals that reproduce on the islands offshore of

[[Page 62035]]

Baja California and mainland Mexico--where the population is also 
increasing--could move through the project area during migration, as 
well as the observation of a juvenile seal near the Fuel Pier in April 
2015.
    Note that common dolphins could be either short-beaked (Delphinus 
delphis delphis) or long-beaked (D. capensis capensis). While it is 
likely that common dolphins observed in the project area would be long-
beaked, as it is the most frequently stranded species in the area from 
San Diego Bay to the U.S.-Mexico border (Danil and St. Leger, 2011), 
the species distributions overlap and it is unlikely that observers 
would be able to differentiate them in the field. Therefore, we 
consider that any common dolphins observed--and any incidental take of 
common dolphins--could be either species.
    In addition, other species that occur in the Southern California 
Bight may have the potential for isolated occurrence within San Diego 
Bay or just offshore. In particular, a short-finned pilot whale 
(Globicephala macrorhynchus) was observed off Ballast Point, and a 
Steller sea lion (Eumetopias jubatus monteriensis) was seen in the 
project area during Year 2. These species are not typically observed 
near the project area and, unlike the previously mentioned species, we 
do not believe it likely that they will occur in the future. Given the 
unlikelihood of their exposure to sound generated from the project, 
these species are not considered further.
    We have reviewed the Navy's detailed species descriptions, 
including life history information, for accuracy and completeness and 
refer the reader to Sections 3 and 4 of the Navy's application instead 
of reprinting the information here. Please also refer to NMFS' Web site 
(www.nmfs.noaa.gov/pr/species/mammals) for generalized species accounts 
and to the Navy's Marine Resource Assessment for the Southern 
California and Point Mugu Operating Areas, which provides information 
regarding the biology and behavior of the marine resources that may 
occur in those operating areas (DoN, 2008). The document is publicly 
available at www.navfac.navy.mil/products_and_services/ev/products_and_services/marine_resources/marine_resource_assessments.html 
(accessed August 21, 2015). In addition, we provided information for 
the potentially affected stocks, including details of stock-wide 
status, trends, and threats, in our Federal Register notices of 
proposed authorization associated with the first- and second-year IHAs 
(78 FR 30873; May 23, 2013 and 79 FR 53026; September 5, 2014) and 
refer the reader to those documents rather than reprinting the 
information here.
    Table 3 lists the marine mammal species with expected potential for 
occurrence in the vicinity of NBPL during the project timeframe and 
summarizes key information regarding stock status and abundance. See 
also Figures 3-1 through 3-5 of the Navy's application for observed 
occurrence of marine mammals in the project area. Taxonomically, we 
follow Committee on Taxonomy (2014). Please see NMFS' Stock Assessment 
Reports (SAR), available at www.nmfs.noaa.gov/pr/sars, for more 
detailed accounts of these stocks' status and abundance. All 
potentially affected species are addressed in the Pacific SARs 
(Carretta et al., 2015).

                                           Table 3--Marine Mammals Potentially Present in the Vicinity of NBPL
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                                                                                    Stock abundance                                        Relative
                                                           ESA/MMPA  status;        (CV, Nmin, most                     Annual M/SI   occurrence  in San
             Species                     Stock            Strategic (Y/N) \1\      recent  abundance      PBR \3\           \4\       Diego Bay;  season
                                                                                      survey) \2\                                        of occurrence
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
                                                                  Family Eschrichtiidae
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Gray whale......................  Eastern North        -; N.....................  20,990 (0.05;                  624          132\6\  Occasional
                                   Pacific.                                        20,125; 2011).                                      migratory
                                                                                                                                       visitor; winter.
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
                                                                   Family Delphinidae
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Bottlenose dolphin..............  California coastal.  -; N.....................  323\5\ (0.13; 290;             2.4             0.2  Common; year-
                                                                                   2005).                                              round.
Short-beaked common dolphin.....  California/Oregon/   -; N.....................  411,211 (0.21;               3,440              64  Occasional; year-
                                   Washington.                                     343,990; 2008).                                     round (but more
                                                                                                                                       common in warm
                                                                                                                                       season).
Long-beaked common dolphin......  California.........  -; N.....................  107,016 (0.42;                 610            13.8  Occasional; year-
                                                                                   76,224; 2009).                                      round (but more
                                                                                                                                       common in warm
                                                                                                                                       season).
Pacific white-sided dolphin.....  California/Oregon/   -; N.....................  26,930 (0.28;                  171            17.8  Uncommon; year-
                                   Washington.                                     21,406; 2008).                                      round.
Risso's dolphin.................  California/Oregon/   -; N.....................  6,272 (0.3; 4,913;              39             1.6  Rare; year-round
                                   Washington.                                     2008).                                              (but more common
                                                                                                                                       in cool season).
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                                                         Order Carnivora--Superfamily Pinnipedia
                                                      Family Otariidae (eared seals and sea lions)
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California sea lion.............  U.S................  -; N.....................  296,750 (n/a;                9,200             389  Abundant; year-
                                                                                   153,337; 2011).                                     round.
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[[Page 62036]]

 
                                                             Family Phocidae (earless seals)
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Harbor seal.....................  California.........  -; N.....................  30,968 (n/a;                 1,641              43  Common; year-
                                                                                   27,348; 2012).                                      round.
Northern elephant seal..........  California breeding  -; N.....................  179,000 (n/a;                4,882             8.8  Rare; year-round.
                                                                                   81,368; 2010).
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\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
  or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks of
  pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge
  of the species (or similar species) life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the
  minimum abundance may represent actual counts of all animals ashore.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value.
\5\ This value is based on photographic mark-recapture surveys conducted along the San Diego coast in 2004-05, but is considered a likely underestimate,
  as it does not reflect that approximately 35 percent of dolphins encountered lack identifiable dorsal fin marks (Defran and Weller, 1999). If 35
  percent of all animals lack distinguishing marks, then the true population size would be closer to 450-500 animals (Carretta et al., 2015).
\6\ Includes annual Russian harvest of 127 whales.

Potential Effects of the Specified Activity on Marine Mammals and Their 
Habitat

    We provided discussion of the potential effects of the specified 
activity on marine mammals and their habitat in our Federal Register 
notices of proposed authorization associated with the first- and 
second-year IHAs (78 FR 30873; May 23, 2013 and 79 FR 53026; September 
5, 2014). The specified activity associated with this IHA is 
substantially similar to those considered for the first- and second-
year IHAs and the potential effects of the specified activity are the 
same as those identified in those documents. Therefore, we do not 
reprint the information here but refer the reader to those documents. 
We also provided brief definitions of relevant acoustic terminology in 
our notice of proposed authorization associated with this IHA (80 FR 
53115; September 2, 2015).

Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable impact on 
such species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for certain 
subsistence uses.
    The mitigation strategies described below largely follow those 
required and successfully implemented under the first- and second-year 
IHAs. For this IHA, data from acoustic monitoring conducted during the 
first two years of work was used to estimate zones of influence (ZOIs; 
see ``Estimated Take by Incidental Harassment''); these values were 
used to develop mitigation measures for pile driving activities at 
NBPL. The ZOIs effectively represent the mitigation zone that would be 
established around each pile to prevent Level A harassment to marine 
mammals, while providing estimates of the areas within which Level B 
harassment might occur. In addition, the Navy has defined buffers to 
the estimated Level A harassment zones to further reduce the potential 
for Level A harassment. In addition to the measures described later in 
this section, the Navy would conduct briefings between construction 
supervisors and crews, marine mammal monitoring team, acoustic 
monitoring team, and Navy staff prior to the start of all pile driving 
activity, and when new personnel join the work, in order to explain 
responsibilities, communication procedures, marine mammal monitoring 
protocol, and operational procedures.

Monitoring and Shutdown for Pile Driving

    The following measures apply to the Navy's mitigation through 
shutdown and disturbance zones:
    Shutdown Zone--For all pile driving and removal activities, the 
Navy will establish a shutdown zone intended to contain the area in 
which SPLs equal or exceed the 180/190 dB rms acoustic injury criteria. 
The purpose of a shutdown zone is to define an area within which 
shutdown of activity would occur upon sighting of a marine mammal (or 
in anticipation of an animal entering the defined area), thus 
preventing injury of marine mammals (serious injury or death are 
unlikely outcomes even in the absence of mitigation measures). 
Estimated radial distances to the relevant thresholds are shown in 
Table 4. For certain activities, the shutdown zone would not exist 
because source levels are lower than the threshold, or the source 
levels indicate that the radial distance to the threshold would be less 
than 10 m. However, a minimum shutdown zone of 20 m will be established 
during all pile driving and removal activities, regardless of the 
estimated zone. This represents a buffer of 10 m added to the 
previously implemented 10 m minimum shutdown zone. In addition the Navy 
will effect a buffered shutdown zone that is intended to significantly 
reduce the potential for Level A harassment given that, in particular, 
California sea lions are quite abundant in the project area and 
bottlenose dolphins may surface unpredictably and move erratically in 
an area with a large amount of construction equipment. The Navy 
considered typical swim speeds (Godfrey, 1985; Lockyer and Morris, 
1987; Fish, 1997; Fish et al., 2003; Rohr et al., 2002; Noren et al., 
2006) and past field experience (e.g., typical elapsed time from 
observation of an animal to

[[Page 62037]]

shutdown of equipment) in initially defining these buffered zones, and 
then evaluated the practicality and effectiveness of the zones during 
the Year 2 construction period. The Navy will add a buffer of 75 m to 
the 190 dB zone for impact driving of steel piles (doubling the 
effective zone to 150 m radius) and will add a buffer of 100 m to the 
180 dB zone for impact driving of steel piles (increasing the effective 
zone to 450 m). These zones are also shown in Table 5. These 
precautionary measures are intended to prevent the already unlikely 
possibility of physical interaction with construction equipment and to 
establish a precautionary minimum zone with regard to acoustic effects.
    Disturbance Zone--Disturbance zones are the areas in which SPLs 
equal or exceed 160 and 120 dB rms (for impulse and continuous sound, 
respectively). Disturbance zones provide utility for monitoring 
conducted for mitigation purposes (i.e., shutdown zone monitoring) by 
establishing monitoring protocols for areas adjacent to the shutdown 
zones. Monitoring of disturbance zones enables observers to be aware of 
and communicate the presence of marine mammals in the project area but 
outside the shutdown zone and thus prepare for potential shutdowns of 
activity. However, the primary purpose of disturbance zone monitoring 
is for documenting incidents of Level B harassment; disturbance zone 
monitoring is discussed in greater detail later (see ``Monitoring and 
Reporting''). Nominal radial distances for disturbance zones are shown 
in Table 4.
    In order to document observed incidents of harassment, monitors 
record all marine mammal observations, regardless of location. The 
observer's location, as well as the location of the pile being driven, 
is known from a GPS. The location of the animal is estimated as a 
distance from the observer, which is then compared to the location from 
the pile. If acoustic monitoring is being conducted for that pile, a 
received SPL may be estimated, or the received level may be estimated 
on the basis of past or subsequent acoustic monitoring. It may then be 
determined whether the animal was exposed to sound levels constituting 
incidental harassment in post-processing of observational and acoustic 
data, and a precise accounting of observed incidences of harassment 
created. Therefore, although the predicted distances to behavioral 
harassment thresholds are useful for estimating incidental harassment 
for purposes of authorizing levels of incidental take, actual take may 
be determined in part through the use of empirical data.
    Acoustic measurements will continue during the third year of 
project activity and zones would be adjusted as indicated by empirical 
data. Please see the Navy's Acoustic and Marine Species Monitoring Plan 
(Monitoring Plan; available at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm) for full details.
    Monitoring Protocols--Monitoring will be conducted before, during, 
and after pile driving activities. In addition, observers will record 
all incidents of marine mammal occurrence, regardless of distance from 
activity, and will document any behavioral reactions in concert with 
distance from piles being driven. Observations made outside the 
shutdown zone will not result in shutdown; that pile segment would be 
completed without cessation, unless the animal approaches or enters the 
shutdown zone, at which point all pile driving activities would be 
halted. Monitoring will take place from fifteen minutes prior to 
initiation through thirty minutes post-completion of pile driving 
activities. Pile driving activities include the time to remove a single 
pile or series of piles, as long as the time elapsed between uses of 
the pile driving equipment is no more than thirty minutes. Please see 
the Monitoring Plan for full details of the monitoring protocols.
    The following additional measures apply to visual monitoring:
    (1) Monitoring will be conducted by qualified observers, who will 
be placed at the best vantage point(s) practicable (as defined in the 
Monitoring Plan) to monitor for marine mammals and implement shutdown/
delay procedures when applicable by calling for the shutdown to the 
hammer operator. Qualified observers are trained biologists, with the 
following minimum qualifications:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of moving targets at the water's surface 
with ability to estimate target size and distance; use of binoculars 
may be necessary to correctly identify the target;
     Advanced education in biological science or related field 
(undergraduate degree or higher is required);
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when in-water construction 
activities were conducted; dates and times when in-water construction 
activities were suspended to avoid potential incidental injury from 
construction sound of marine mammals observed within a defined shutdown 
zone; and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    (2) Prior to the start of pile driving activity, the shutdown zone 
will be monitored for fifteen minutes to ensure that it is clear of 
marine mammals. Pile driving will only commence once observers have 
declared the shutdown zone clear of marine mammals; animals will be 
allowed to remain in the shutdown zone (i.e., must leave of their own 
volition) and their behavior will be monitored and documented. The 
shutdown zone may only be declared clear, and pile driving started, 
when the entire shutdown zone is visible (i.e., when not obscured by 
dark, rain, fog, etc.). In addition, if such conditions should arise 
during impact pile driving that is already underway, the activity would 
be halted.
    (3) If a marine mammal approaches or enters the shutdown zone 
during the course of pile driving operations, activity will be halted 
and delayed until either the animal has voluntarily left and been 
visually confirmed beyond the shutdown zone or fifteen minutes have 
passed without re-detection of the animal. Monitoring will be conducted 
throughout the time required to drive a pile and for thirty minutes 
following the conclusion of pile driving.

Timing Restrictions

    In-order to avoid impacts to least tern populations when they are 
most likely to be foraging and nesting, in-water work will be 
concentrated from October 1-April 1 or, depending on circumstances, to 
April 30. However, this limitation is in accordance with agreements 
between the Navy and FWS, and is not a requirement of this IHA. All in-
water construction activities will occur only during daylight hours 
(sunrise to sunset).

[[Page 62038]]

Soft Start

    The use of a soft start procedure is believed to provide additional 
protection to marine mammals by warning or providing a chance to leave 
the area prior to the hammer operating at full capacity, and typically 
involves a requirement to initiate sound from the hammer at reduced 
energy followed by a waiting period. This procedure is repeated two 
additional times. It is difficult to specify the reduction in energy 
for any given hammer because of variation across drivers and, for 
impact hammers, the actual number of strikes at reduced energy will 
vary because operating the hammer at less than full power results in 
``bouncing'' of the hammer as it strikes the pile, resulting in 
multiple ``strikes.'' The project will utilize soft start techniques 
for both impact and vibratory pile driving of steel piles. We require 
the Navy to initiate sound from vibratory hammers for fifteen seconds 
at reduced energy followed by a thirty-second waiting period, with the 
procedure repeated two additional times. For impact driving, we require 
an initial set of three strikes from the impact hammer at reduced 
energy, followed by a thirty-second waiting period, then two subsequent 
three strike sets. Soft start will be required at the beginning of each 
day's pile driving work and at any time following a cessation of pile 
driving of thirty minutes or longer; these requirements are specific to 
both vibratory and impact driving and the requirement. For example, the 
requirement to implement soft start for impact driving is independent 
of whether vibratory driving has occurred within the past thirty 
minutes.
    We have carefully evaluated the Navy's proposed mitigation measures 
and considered their effectiveness in past implementation to determine 
whether they are likely to effect the least practicable impact on the 
affected marine mammal species and stocks and their habitat. Our 
evaluation of potential measures included consideration of the 
following factors in relation to one another: (1) The manner in which, 
and the degree to which, the successful implementation of the measure 
is expected to minimize adverse impacts to marine mammals, (2) the 
proven or likely efficacy of the specific measure to minimize adverse 
impacts as planned; and (3) the practicability of the measure for 
applicant implementation.
    Any mitigation measure(s) we prescribe 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 number (total number or number at 
biologically important time or location) of individual marine mammals 
exposed to stimuli expected to result in incidental take (this goal may 
contribute to 1, above, or to reducing takes by behavioral harassment 
only).
    (3) A reduction in the number (total number or number at 
biologically important time or location) of times any individual marine 
mammal would be exposed to stimuli expected to result in incidental 
take (this goal may contribute to 1, above, or to reducing takes by 
behavioral harassment only).
    (4) A reduction in the intensity of exposure to stimuli expected to 
result in incidental take (this goal may contribute to 1, above, or to 
reducing the severity of behavioral harassment only).
    (5) Avoidance or minimization of adverse effects to marine mammal 
habitat, paying particular attention to the prey base, blockage or 
limitation of passage to or from biologically important areas, 
permanent destruction of habitat, or temporary 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 our evaluation of the Navy's proposed measures, as well as 
any other potential measures that may be relevant to the specified 
activity, we have determined that the planned 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 IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for 
incidental take authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
     Occurrence of marine mammal species in action area (e.g., 
presence, abundance, distribution, density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
Affected species (e.g., life history, dive patterns); (3) Co-occurrence 
of marine mammal species with the action; or (4) Biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) Population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.
    Please see the Monitoring Plan (available at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm) for full details of the 
requirements for monitoring and reporting. Notional monitoring 
locations (for biological and acoustic monitoring) are shown in Figures 
3-1 and 3-2 of the Plan. The purpose of this Plan is to provide 
protocols for acoustic and marine mammal monitoring implemented during 
pile driving and removal activities. We have determined this monitoring 
plan, which is summarized here and which largely follows the monitoring 
strategies required and successfully implemented under the previous 
IHAs, to be sufficient to meet the MMPA's monitoring and reporting 
requirements. The previous monitoring plan was modified to integrate 
adaptive changes to the monitoring methodologies as well as updates to 
the scheduled construction activities. Monitoring objectives are as 
follows:
     Monitor in-water construction activities, including the 
implementation of in-situ acoustic monitoring efforts to continue to 
measure SPLs from in-water construction and demolition activities not 
previously monitored or validated during the previous IHAs. At minimum, 
acoustic sound levels would be collected and evaluated acoustic for 
five

[[Page 62039]]

piles of each type of fender pile to be installed.
     Monitor marine mammal occurrence and behavior during in-
water construction activities to minimize marine mammal impacts and 
effectively document marine mammals occurring within ZOI boundaries.
     Continue the collection of ambient underwater sound 
measurements in the absence of project activities to develop a rigorous 
baseline for the project area.

Acoustic Measurements

    The primary purpose of acoustic monitoring is to empirically verify 
modeled injury and behavioral disturbance zones (defined at radial 
distances to NMFS-specified thresholds of 160-, 180-, and 190-dB (rms) 
for underwater sound (where applicable) and 90- and 100-dB (unweighted) 
for airborne sound; see ``Estimated Take by Incidental Harassment'' 
below). For non-pulsed sound, distances will continue to be evaluated 
for attenuation to the point at which sound becomes indistinguishable 
from background levels. Empirical acoustic monitoring data will be used 
to document transmission loss values determined from measurements 
collected during the IPP and to examine site-specific differences in 
SPL and affected ZOIs on an as needed basis.
    Should monitoring results indicate it is appropriate to do so, 
marine mammal mitigation zones would be revised as necessary to 
encompass actual ZOIs in subsequent years of the fuel pier replacement 
project. Acoustic monitoring will be conducted as specified in the 
approved Monitoring Plan. Please see Table 2-2 of the Plan for a list 
of equipment to be used during acoustic monitoring. Monitoring 
locations will be determined based on results of previous acoustic 
monitoring effort and the best professional judgment of acoustic 
technicians.
    Some details of the methodology include:
     No acoustic data to be collected for 30-in steel piles as 
sufficient data has been collected for 36-in steel piles during 
previous two years. One airborne sound monitoring station will be 
maintained.
     Hydroacoustic monitoring to be conducted at source for 
impact driving of a minimum of five of each type of fender pile in 
order to document SPLs.
     Sound level meters to be deployed to continue validation 
of source SPLs and 160/120 dB ZOIs as documented from previous acoustic 
monitoring efforts.
     Source SPLs for all construction or demolition activities 
will be measured for the first five events of each size or type of pile 
or activity if not sufficiently measured and/or validated previously; 
Navy would conduct additional monitoring if source unexpectedly exceeds 
any assumed values.
     For underwater recordings, sound level meter systems will 
follow methods in accordance with NMFS' 2012 guidance for the 
collection of source levels.
     For airborne recordings, to the extent that logistics and 
security allow, reference recordings will be collected at approximately 
15 m from the source via a sound meter with integrated microphone. 
Other distances may also be utilized to obtain better data if the 
signal cannot be isolated clearly due to other sound sources (e.g., 
barges or generators).
     Ambient conditions will be measured at the project site in 
the absence of construction activities to determine background sound 
levels. Ambient levels will be recorded over the frequency range from 7 
Hz to 20 kHz. Ambient conditions will be recorded at least three times 
during the IHA period consistent with NMFS' 2012 guidance for the 
measurement of ambient sound. Each time, data will be collected for 
eight-hour periods for three days during typical working hours (7 a.m. 
to 6 p.m., Monday through Saturday) in the absence of in-water 
construction activities. The three recording periods will be spaced to 
adequately capture variation across the notional work window (October-
March).
     Environmental data would be collected including but not 
limited to: wind speed and direction, air temperature, humidity, 
surface water temperature, water depth, wave height, weather conditions 
and other factors that could contribute to influencing the airborne and 
underwater sound levels (e.g., aircraft, boats).
     From all the strikes associated with each pile occurring 
during the Level 4 (highest energy) phase these measures will be made:
    [cir] Mean, minimum, and maximum rms pressure level in dB.
    [cir] Mean duration of a pile strike (based on the ninety percent 
energy criterion).
    [cir] Number of hammer strikes.
    [cir] Mean, minimum, and maximum single strike SEL in dB re 
[mu]Pa\2\ sec.
    [cir] Cumulative SEL as defined by the mean single strike SEL + 
10*log (# hammer strikes) in dB re [mu]Pa\2\ sec.
    [cir] A frequency spectrum (pressure spectral density) in [dB re 
[mu]Pa\2\ per Hz] based on the average of up to eight successive 
strikes with similar sound. Spectral resolution will be 1 Hz and the 
spectrum will cover nominal range from 7 Hz to 20 kHz.
    Full details of acoustic monitoring requirements may be found in 
section 3.2 of the Navy's approved Monitoring Plan and in section 13 of 
the Navy's application.

Visual Marine Mammal Observations

    The Navy will collect sighting data and behavioral responses to 
construction for marine mammal species observed in the region of 
activity during the period of activity. All observers will be trained 
in marine mammal identification and behaviors and are required to have 
no other construction-related tasks while conducting monitoring. The 
Navy will monitor the shutdown zone and disturbance zone before, 
during, and after pile driving as described under ``Mitigation'' and in 
the Monitoring Plan, with observers located at the best practicable 
vantage points. Notional monitoring locations are shown in Figures 3-1 
and 3-2 of the Navy's Plan. Please see that plan, available at 
www.nmfs.noaa.gov/pr/permits/incidental/construction.htm, for full 
details of the required marine mammal monitoring. Section 4.2 of the 
Plan and section 13 of the Navy's application offer more detail 
regarding monitoring protocols. Based on our requirements, the Navy 
would implement the following procedures for pile driving:
     MMOs would be located at the best vantage point(s) in 
order to properly see the entire shutdown zone and as much of the 
disturbance zone as possible.
     During all observation periods, observers will use 
binoculars and the naked eye to search continuously for marine mammals.
     If the shutdown zones are obscured by fog or poor lighting 
conditions, pile driving at that location will not be initiated until 
that zone is visible. Should such conditions arise while impact driving 
is underway, the activity would be halted.
     The shutdown and disturbance zones around the pile will be 
monitored for the presence of marine mammals before, during, and after 
any pile driving or removal activity.
    One MMO will be placed on the active construction/demolition 
platform in order to observe the respective shutdown zones for 
vibratory and impact pile driving or for applicable demolition 
activities. Monitoring will be primarily dedicated to observing the 
shutdown zone; however, MMOs would record all marine mammal sightings 
beyond these distances provided it did not interfere with their 
effectiveness at carrying out the shutdown procedures.

[[Page 62040]]

Additional land, pier, or vessel-based MMOs will be positioned to 
monitor the shutdown zones and the buffer zones, as notionally 
indicated in Figures 3-1 and 3-2 of the Navy's application. Up to five 
additional MMOs will be deployed during driving of steel piles, and at 
least one additional MMO will be deployed during driving of fender 
piles and during applicable demolition activities.
    Because there are different threshold distances for different types 
of marine mammals (pinniped and cetacean), the observation platform at 
the shutdown zone will concentrate on the 190 dB rms and 180 dB rms 
isopleths locations and station the observers and vessels accordingly. 
The MMOs associated with these platforms will record all visible marine 
mammal sightings. Confirmed takes will be registered once the sightings 
data has been overlaid with the isopleths identified in Table 4 and 
visualized (for steel piles) in Figure 6-2 of the Navy's application, 
or based on refined acoustic data, if amendments to the ZOIs are 
needed. The acousticians on board will be noting SPLs in real-time, 
but, to avoid biasing the observations, will not communicate that 
information directly to the MMOs. These platforms may move closer to, 
or farther from, the source depending on whether received SPLs are less 
than or greater than the regulatory threshold values. All MMOs will be 
in radio communication with each other so that the MMOs will know when 
to anticipate incoming marine mammal species and when they are tracking 
the same animals observed elsewhere.
    If any species for which take is not authorized is observed by a 
MMO during applicable construction or demolition activities, all 
construction will be stopped immediately. If a boat is available, MMOs 
will follow the animal(s) at a minimum distance of 100 m until the 
animal has left the Level B ZOI. Pile driving will commence if the 
animal has not been seen inside the Level B ZOI for at least one hour 
of observation. If the animal is resighted again, pile driving will be 
stopped and a boat-based MMO (if available) will follow the animal 
until it has left the Level B ZOI.
    Individuals implementing the monitoring protocol will assess its 
effectiveness using an adaptive approach. Monitoring biologists will 
use their best professional judgment throughout implementation and seek 
improvements to these methods when deemed appropriate. Any 
modifications to protocol will be coordinated between NMFS and the 
Navy.

Data Collection

    We require that observers use approved data forms. Among other 
pieces of information, the Navy will record detailed information about 
any implementation of shutdowns, including the distance of animals to 
the pile and description of specific actions that ensued and resulting 
behavior of the animal, if any. In addition, the Navy will attempt to 
distinguish between the number of individual animals taken and the 
number of incidents of take. We require that, at a minimum, the 
following information be collected on the sighting forms:
     Date and time that monitored activity begins or ends;
     Construction activities occurring during each observation 
period;
     Weather parameters (e.g., percent cover, visibility);
     Water conditions (e.g., sea state, tide state);
     Species, numbers, and, if possible, sex and age class of 
marine mammals;
     Description of any observable marine mammal behavior 
patterns, including bearing and direction of travel and distance from 
pile driving activity, and if possible, the correlation to measured 
SPLs;
     Distance from pile driving activities to marine mammals 
and distance from the marine mammals to the observation point;
     Description of implementation of mitigation measures 
(e.g., shutdown or delay);
     Locations of all marine mammal observations; and
     Other human activity in the area.
    In addition, photographs would be taken of any gray whales 
observed. These photographs would be submitted to NMFS' West Coast 
Regional Office for comparison with photo-identification catalogs to 
determine whether the whale is a member of the WNP population.

Reporting

    A draft report will be submitted to NMFS within 45 calendar days of 
the completion of marine mammal monitoring, or sixty days prior to the 
issuance of any subsequent IHA for this project, whichever comes first. 
The report will include marine mammal observations pre-activity, 
during-activity, and post-activity during pile driving days, and will 
also provide descriptions of any behavioral responses to construction 
activities by marine mammals and a complete description of all 
mitigation shutdowns and the results of those actions. A final report 
will be prepared and submitted within thirty days following resolution 
of comments on the draft report. Required contents of the monitoring 
reports are described in more detail in the Navy's Acoustic and Marine 
Species Monitoring Plan.

Monitoring Results From Previously Authorized Activities

    The Navy complied with the mitigation and monitoring required under 
the previous authorizations for this project. Acoustic and marine 
mammal monitoring was implemented as required, with marine mammal 
monitoring occurring before, during, and after each pile driving event. 
During the course of Year 2 activities, the Navy did not exceed the 
take levels authorized under the IHA. However, the Navy did record four 
observations of California sea lions within the defined 190-dB shutdown 
zone. Previous acoustic and marine mammal monitoring results were 
detailed in our Federal Register notice of proposed authorization (80 
FR 53115; September 2, 2015) and are not repeated here.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of the MMPA defines ``harassment'' as: ``. . . any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild [Level A harassment]; 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering [Level B harassment].''
    All anticipated takes would be by Level B harassment resulting from 
vibratory and impact pile driving or demolition and involving temporary 
changes in behavior. The planned mitigation and monitoring measures 
(i.e., buffered shutdown zones) are expected to minimize the 
possibility of Level A harassment such that we believe it is unlikely. 
We do not expect that injurious or lethal takes would occur even in the 
absence of the planned mitigation and monitoring measures.
    If a marine mammal responds to a stimulus by changing its behavior 
(e.g., through relatively minor changes in locomotion direction/speed 
or vocalization behavior), the response may or may not constitute 
taking at the individual level, and is unlikely to affect the stock or 
the species as a whole. However, if a sound source displaces marine 
mammals from an important feeding or breeding area for a

[[Page 62041]]

prolonged period, impacts on animals or on the stock or species could 
potentially be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 
2007). Given the many uncertainties in predicting the quantity and 
types of impacts of sound on marine mammals, it is common practice to 
estimate how many animals are likely to be present within a particular 
distance of a given activity, or exposed to a particular level of 
sound. In practice, depending on the amount of information available to 
characterize daily and seasonal movement and distribution of affected 
marine mammals, it can be difficult to distinguish between the number 
of individuals harassed and the instances of harassment and, when 
duration of the activity is considered, it can result in a take 
estimate that overestimates the number of individuals harassed. In 
particular, for stationary activities, it is more likely that some 
smaller number of individuals may accrue a number of incidences of 
harassment per individual than for each incidence to accrue to a new 
individual, especially if those individuals display some degree of 
residency or site fidelity and the impetus to use the site (e.g., 
because of foraging opportunities) is stronger than the deterrence 
presented by the harassing activity.
    The project area is not believed to be particularly important 
habitat for marine mammals, nor is it considered an area frequented by 
marine mammals (with the exception of California sea lions, which are 
attracted to nearby haul-out opportunities). Sightings of other species 
are relatively rare. Therefore, behavioral disturbances that could 
result from anthropogenic sound associated with these activities are 
expected to affect only a relatively small number of individual marine 
mammals, although those effects could be recurring over the life of the 
project if the same individuals remain in the project vicinity.
    The Navy requested authorization for the potential taking of small 
numbers of California sea lions, harbor seals, bottlenose dolphins, 
common dolphins, Pacific white-sided dolphins, Risso's dolphins, 
northern elephant seals, and gray whales in San Diego Bay and nearby 
waters that may result from pile driving during construction activities 
associated with the fuel pier replacement project described previously 
in this document. In order to estimate the potential incidents of take 
that may occur incidental to the specified activity, we typically first 
estimate the extent of the sound field that may be produced by the 
activity and then consider in combination with information about marine 
mammal density or abundance in the project area.
    We provided detailed information on applicable sound thresholds for 
determining effects to marine mammals and described the information 
used in estimating the sound fields, the available marine mammal 
density or abundance information, and the method of estimating 
potential incidents of take, in our Federal Register notice of proposed 
authorization (80 FR 53115; September 2, 2015). That information is 
unchanged, and our take estimates were calculated in the same manner 
and on the basis of the same information as what was described in the 
Federal Register notice. Measured distances to relevant thresholds are 
shown in Table 4, assumed ZOIs and days of activity are shown in Table 
5, and total estimated incidents of take are shown in Table 6. Please 
see our Federal Register notice of proposed authorization (80 FR 53115; 
September 2, 2015) for full details of the process and information used 
in estimating potential incidents of take.

                               Table 4--Measured Distances to Relevant Thresholds
----------------------------------------------------------------------------------------------------------------
                                                              Distance to threshold in meters
                Activity                 -----------------------------------------------------------------------
                                            190 dB      180 dB      160 dB      120 dB      100 dB       90 dB
----------------------------------------------------------------------------------------------------------------
Impact driving, steel piles \1\.........      75 \2\     350 \2\       2,000         n/a          78         182
Vibratory driving, steel piles..........         <10         <10         n/a       3,000  ..........  ..........
Impact driving, 24x30 concrete piles....         <10         <10         505         n/a  ..........  ..........
Impact driving, 16-in concrete-filled            <10         <10         259         n/a  ..........  ..........
 fiberglass piles.......................
Pile cutting (demolition)...............         <10         <10         n/a       1,500  ..........  ..........
----------------------------------------------------------------------------------------------------------------
\1\ Note that, for underwater zones, these values are based on data for bayside piles and will be precautionary
  for shoreside piles.
\2\ The buffered zones for use in mitigation will be 150 m and 450 m, respectively. The minimum zone for other
  activities listed here will be 20 m.

Description of Take Calculation

    The following assumptions are made when estimating potential 
incidences of take:
     All marine mammal individuals potentially available are 
assumed to be present within the relevant area, and thus incidentally 
taken;
     An individual can only be taken once during a 24-h period;
     The assumed ZOIs and days of activity are as shown in 
Table 5; and,
     Exposures to sound levels at or above the relevant 
thresholds equate to take, as defined by the MMPA.
    The estimation of marine mammal takes typically uses the following 
calculation:

Exposure estimate = (n * ZOI) * days of total activity

where:

n = density estimate used for each species/season
ZOI = sound threshold ZOI area; the area encompassed by all 
locations where the SPLs equal or exceed the threshold being 
evaluated
n * ZOI produces an estimate of the abundance of animals that could 
be present in the area for exposure, and is rounded to the nearest 
whole number before multiplying by days of total activity.

    The ZOI impact area is estimated using the relevant distances in 
Table 4, assuming that sound radiates from a central point in the water 
column slightly offshore of the existing pier and taking into 
consideration the possible affected area due to topographical 
constraints of the action area (i.e., radial distances to thresholds 
are not always reached). When local abundance is the best available 
information, in lieu of the density-area method described above, we may 
simply multiply some number of animals (as determined through counts of 
animals hauled-out) by the number of days of activity, under the 
assumption that all of those animals will be present and incidentally 
taken on each day of activity.

[[Page 62042]]



           Table 5--Activity-Specific Days and Calculated ZOIs
------------------------------------------------------------------------
                                                        Number     ZOI
                       Activity                         of days  (km\2\)
------------------------------------------------------------------------
Impact and vibratory driving, 30-in steel piles \1\..         6   5.6572
Vibratory removal....................................         6   5.6572
Impact driving, 24x32-in concrete piles..............        22   0.1914
Impact driving, 16-in concrete-filled fiberglass             33   0.0834
 piles...............................................
Hydraulic pile cutting/diamond saw cutting...........        48   3.0786
------------------------------------------------------------------------
\1\ We assume that impact driving of 30-in steel piles would always
  occur on the same day as vibratory driving of the same piles.
  Therefore, the impact driving ZOI (3.8894 km\2\) would always be
  subsumed by the vibratory driving ZOI.

    Where appropriate, we use average daily number of individuals 
observed within the project area during Navy marine mammal surveys 
converted to a density value by using the largest ZOI as the effective 
observation area. It is the opinion of the professional biologists who 
conducted these surveys that detectability of animals during these 
surveys, at slow speeds and under calm weather and excellent viewing 
conditions, approached one hundred percent.
    There are a number of reasons why estimates of potential incidents 
of take may be conservative, assuming that available density or 
abundance estimates and estimated ZOI areas are accurate (aside from 
the contingency correction discussed above). We assume, in the absence 
of information supporting a more refined conclusion, that the output of 
the calculation represents the number of individuals that may be taken 
by the specified activity. In fact, in the context of stationary 
activities such as pile driving and in areas where resident animals may 
be present, this number more realistically represents the number of 
incidents of take that may accrue to a smaller number of individuals. 
While pile driving can occur any day throughout the period of validity, 
and the analysis is conducted on a per day basis, only a fraction of 
that time (typically a matter of hours on any given day) is actually 
spent pile driving. The potential effectiveness of mitigation measures 
in reducing the number of takes is typically not quantified in the take 
estimation process. For these reasons, these take estimates may be 
conservative. See Table 6 for total estimated incidents of take.

                                                  Table 6--Calculations for Incidental Take Estimation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Impact
                                                             Impact    Vibratory    Impact      driving,     Vibratory    Pile    Total authorized takes
                    Species                       Density   driving,   driving,    driving,     concrete/     removal   cutting     (% of total stock)
                                                           steel \1\     steel     concrete    fiberglass
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion............................   15.9201        372         540         22              33        540    2,352              3,487 (1.2)
Harbor seal....................................    0.4987         12          18          0               0         18       96                132 (0.4)
Bottlenose dolphin.............................    1.2493         30          42          0               0         42      192           \2\ 276 (55.2)
Common dolphin.................................    1.5277         36          54          0               0         54      240    \3\ 348 (0.3 [LB]/0.1
                                                                                                                                                   [SB])
Gray whale.....................................     0.115          0           6          0               0          6        0                 12 (0.1)
Northern elephant seal \4\.....................    0.0508          1           1          0               0          1        1                3 (0.002)
Pacific white-sided dolphin \5\................    0.0493          1           1          0               0          1        1                21 (0.04)
Risso's dolphin................................    0.2029          6           6          0               0          6       48                 60 (1.0)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ We assume that impact driving of steel piles would occur on the same day as vibratory driving of the same piles. Therefore, these estimates are
  provided for reference only and are not included in the total take authorization.
\2\ Total stock assumed to be 500 for purposes of calculation. See Table 3.
\3\ LB = long-beaked; SB = short-beaked.
\4\ Although the density calculation gives a result of zero for all scenarios, we assume one occurrence of one northern elephant seal will occur in the
  relevant ZOI for each indicated activity.
\5\ Although the density calculation gives a result of zero for all scenarios, we assume one occurrence of a group of Pacific white-sided dolphins will
  occur in the relevant ZOI for each indicated activity, with a group size of seven.

Analyses and Determinations

Negligible Impact Analysis

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``. . . 
an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' A negligible impact finding is based on the 
lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
Level B harassment takes alone is not enough information on which to 
base an impact determination. In addition to considering estimates of 
the number of marine mammals that might be ``taken'' through behavioral 
harassment, we consider other factors, such as the likely nature of any 
responses (e.g., intensity, duration), the context of any responses 
(e.g., critical reproductive time or location, migration), as well as 
the number and nature of estimated Level A harassment takes, the number 
of estimated mortalities, and effects on habitat.
    Pile driving activities associated with the pier replacement 
project have the potential to disturb or displace marine mammals. 
Specifically, the specified activities may result in take, in the form 
of Level B harassment (behavioral disturbance) only, from underwater 
sounds generated from pile driving. Potential takes could occur if 
individuals of these species are present in the ensonified zone when 
pile driving is happening.
    No injury, serious injury, or mortality is anticipated given the 
nature of the activity and measures designed to minimize the 
possibility of injury to marine mammals. The potential for these 
outcomes is minimized through the construction method and the 
implementation of the planned mitigation measures. For example, use of 
vibratory hammers does not have significant potential to cause injury 
to marine mammals due to the relatively low source levels produced 
(site-specific acoustic monitoring data show no source level 
measurements above 180 dB rms) and the lack of potentially injurious 
source characteristics. Impact pile driving produces short, sharp 
pulses with higher peak levels and much sharper rise time to reach 
those peaks. When impact driving is necessary, required measures 
(implementation of buffered shutdown zones) significantly reduce any 
possibility of injury. Given sufficient ``notice'' through use of soft 
start (for impact driving), marine mammals are

[[Page 62043]]

expected to move away from a sound source that is annoying prior to its 
becoming potentially injurious. The likelihood that marine mammal 
detection ability by trained observers is high under the environmental 
conditions described for San Diego Bay (approaching one hundred percent 
detection rate, as described by trained biologists conducting site-
specific surveys) further enables the implementation of shutdowns to 
avoid injury, serious injury, or mortality.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from past 
years of this project and other similar activities, will likely be 
limited to reactions such as increased swimming speeds, increased 
surfacing time, or decreased foraging (if such activity were occurring) 
(e.g., Thorson and Reyff, 2006; HDR, 2012; Lerma, 2014). Most likely, 
individuals will simply move away from the sound source and be 
temporarily displaced from the areas of pile driving, although even 
this reaction has been observed primarily only in association with 
impact pile driving. In response to vibratory driving, pinnipeds (which 
may become somewhat habituated to human activity in industrial or urban 
waterways) have been observed to orient towards and sometimes move 
towards the sound. The pile driving activities analyzed here are 
similar to, or less impactful than, numerous other construction 
activities conducted in San Francisco Bay and in the Puget Sound 
region, which have taken place with no reported injuries or mortality 
to marine mammals, and no known long-term adverse consequences from 
behavioral harassment. Repeated exposures of individuals to levels of 
sound that may cause Level B harassment are unlikely to result in 
hearing impairment or to significantly disrupt foraging behavior. Thus, 
even repeated Level B harassment of some small subset of the overall 
stock is unlikely to result in any significant realized decrease in 
fitness for the affected individuals, and thus would not result in any 
adverse impact to the stock as a whole. Level B harassment will be 
reduced to the level of least practicable impact through use of 
mitigation measures described herein and, if sound produced by project 
activities is sufficiently disturbing, animals are likely to simply 
avoid the project area while the activity is occurring.
    In summary, this negligible impact analysis is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality may reasonably be considered discountable; (2) the 
anticipated incidents of Level B harassment consist of, at worst, 
temporary modifications in behavior; (3) the absence of any significant 
habitat within the project area, including rookeries, significant haul-
outs, or known areas or features of special significance for foraging 
or reproduction; (4) the presumed efficacy of the planned mitigation 
measures in reducing the effects of the specified activity to the level 
of least practicable impact. In addition, these stocks are not listed 
under the ESA or considered depleted under the MMPA. In combination, we 
believe that these factors, as well as the available body of evidence 
from other similar activities, demonstrate that the potential effects 
of the specified activity will have only short-term effects on 
individuals. The specified activity is not expected to impact rates of 
recruitment or survival and will therefore not result in population-
level impacts. Based on the analysis contained herein of the likely 
effects of the specified activity on marine mammals and their habitat, 
and taking into consideration the implementation of the proposed 
monitoring and mitigation measures, we find that the total marine 
mammal take from Navy's pier replacement activities will have a 
negligible impact on the affected marine mammal species or stocks.

Small Numbers Analysis

    The number of incidents of take authorized for these stocks, with 
the exception of the coastal bottlenose dolphin (see below), would be 
considered small relative to the relevant stocks or populations (see 
Table 6) even if each estimated taking occurred to a new individual. 
This is an extremely unlikely scenario as, for pinnipeds occurring at 
the NBPL waterfront, there will almost certainly be some overlap in 
individuals present day-to-day and in general, there is likely to be 
some overlap in individuals present day-to-day for animals in 
estuarine/inland waters.
    The numbers of authorized take for bottlenose dolphins are higher 
relative to the total stock abundance estimate and would not represent 
small numbers if a significant portion of the take was for a new 
individual. However, these numbers represent the estimated incidents of 
take, not the number of individuals taken. That is, it is likely that a 
relatively small subset of California coastal bottlenose dolphins would 
be incidentally harassed by project activities. California coastal 
bottlenose dolphins range from San Francisco Bay to San Diego (and 
south into Mexico) and the specified activity would be stationary 
within an enclosed water body that is not recognized as an area of any 
special significance for coastal bottlenose dolphins (and is therefore 
not an area of dolphin aggregation, as evident in Navy observational 
records). We therefore believe that the estimated numbers of takes, 
were they to occur, likely represent repeated exposures of a much 
smaller number of bottlenose dolphins and that, based on the limited 
region of exposure in comparison with the known distribution of the 
coastal bottlenose dolphin, these estimated incidents of take represent 
small numbers of bottlenose dolphins.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, we find that small numbers of marine mammals will be taken 
relative to the populations of the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

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

Endangered Species Act (ESA)

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

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), the 
Navy prepared an Environmental Assessment (EA) to consider the direct, 
indirect and cumulative effects to the human environment resulting from 
the pier

[[Page 62044]]

replacement project. NMFS made the Navy's EA available to the public 
for review and comment, in relation to its suitability for adoption by 
NMFS in order to assess the impacts to the human environment of 
issuance of an IHA to the Navy. Also in compliance with NEPA and the 
CEQ regulations, as well as NOAA Administrative Order 216-6, NMFS has 
reviewed the Navy's EA, determined it to be sufficient, and adopted 
that EA and signed a Finding of No Significant Impact (FONSI) on July 
8, 2013.
    We have reviewed the Navy's application for a renewed IHA for 
ongoing construction activities for 2015-16 and the 2014-15 monitoring 
report. Based on that review, we have determined that the proposed 
action is very similar to that considered in the previous IHAs. In 
addition, no significant new circumstances or information relevant to 
environmental concerns have been identified. Thus, we have determined 
that the preparation of a new or supplemental NEPA document is not 
necessary, and, after review of public comments reaffirm our 2013 
FONSI. The 2013 NEPA documents are available for review at 
www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

Authorization

    As a result of these determinations, we have issued an IHA to the 
Navy for conducting the described pier replacement activities in San 
Diego Bay, from October 8, 2015 through October 7, 2016, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: October 6, 2015.
Perry F. Gayaldo,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2015-26226 Filed 10-14-15; 8:45 am]
 BILLING CODE 3510-22-P