Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Pier Replacement Project, 66628-66639 [2016-23389]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 81, Number 188 (Wednesday, September 28, 2016)]
[Notices]
[Pages 66628-66639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23389]



[[Page 66628]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE744


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, 2016, through 
October 7, 2017.

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 online 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 16, 2016, we received a request from the Navy for 
authorization to take marine mammals incidental to pile installation 
and demolition associated with a pier replacement project in San Diego 
Bay at Naval Base Point Loma in San Diego, CA (NBPL), including a 
separate monitoring plan. The Navy also submitted a draft monitoring 
report on June 2, 2016, pursuant to requirements of the previous IHA. 
The Navy submitted revised versions of the request and monitoring plan 
on August 3, 2016 and a revised monitoring report on July 12, 2016. 
These documents were deemed adequate and complete. The pier replacement 
project is planned to occur over multiple years; this proposed IHA 
would cover only the fourth year of work and would be valid for a 
period of one year from the date of issuance. 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, as well as 
various demolition techniques, 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 fourth such IHA, following the IHAs issued effective 
from September 1, 2013, through August 31, 2014 (78 FR 44539), from 
October 8, 2014, through October 7, 2015 (79 FR 65378), and from 
October 8, 2015, through October 7, 2016 (80 FR 62032). Monitoring 
reports are available online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm and provide environmental information 
related to issuance of this IHA for public review and comment.

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

[[Page 66629]]

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.
    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 fourth year of construction (the 
specified activity considered under this IHA), the Navy anticipates 
construction at two locations: the fuel pier area and at the Naval Mine 
and Anti-Submarine Warfare Command (NMAWC), where the Navy's Marine 
Mammal Program (MMP) was temporarily moved during fuel pier 
construction (see Figure 1-1 in the Navy's application). At the fuel 
pier, the Navy anticipates driving remaining concrete fender piles and 
driving remaining steel piles for mooring dolphins. At NMAWC, Navy 
anticipates extracting and driving concrete piles as needed to return 
the existing facility to its configuration prior to temporary placement 
of the MMP, which will be returned to its previous location near the 
fuel pier. For construction work at the fuel pier, Navy anticipates 
driving approximately 24 30-in steel pipe piles, 81 30 x 24-in concrete 
piles, and one 16-in concrete-filled fiberglass pile. Steel pipe piles 
would be installed to refusal using a vibratory driver and then 
finished using an impact hammer. Concrete piles would be installed to 
within five feet of tip elevation via jetting before being finished 
with an impact hammer, and the fiberglass pile would be installed 
entirely using an impact hammer. At NMAWC, Navy anticipates driving 21 
16-in concrete piles using an impact hammer and removing forty existing 
16-in concrete piles used for the temporary MMP relocation. See Table 
1-4 in the Navy's application for more detail on piles to be installed.
    The proposed actions with the potential to incidentally harass 
marine mammals within the waters adjacent to NBPL are vibratory and 
impact pile installation and certain demolition (i.e., pile removal) 
techniques when not occurring concurrently with pile installation. 
Concurrent use of multiple pile driving rigs is not planned.

Dates and Duration

    The activities planned during the fourth year of work associated 
with the fuel pier project would occur for one year from the date of 
issuance of this proposed IHA. 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 not expected to result in production of 
significant noise or turbidity (e.g., demolition activities) 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 construction work will 
primarily occur from October through April. Pile driving will occur 
during normal working hours (approximately 7 a.m. to 6 p.m.), and will 
not occur earlier than 45 minutes after sunrise or later than 45 
minutes before sunset.

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 fourth-year IHA (81 FR 
52637; August 9, 2016) we provided an overview of relevant construction 
methods before describing only the specific project portions scheduled 
for completion during the fourth work window. We do not repeat that 
information here; please refer to that document for more information. 
For the fourth year of work, approximately 106 steel and concrete piles 
are expected to be installed, completing in-water construction work for 
the new pier (with a total of approximately 518 steel and concrete 
piles installed). The Navy anticipates the need to request a fifth IHA 
related to completion of demolition work.

Description of Work Accomplished

    During the first in-water work season, two primary activities were 
conducted: relocation of the MMP 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. Production pile driving continued during the third in-water 
work season (2015-16). These activities were detailed in our Federal 
Register notice of proposed authorization (81 FR 52637; August 9, 2016) 
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 August 9, 2016 (81 FR 52637). 
We received a letter from the Marine Mammal Commission; the 
Commission's recommendation and our response is 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

[[Page 66630]]

and rationale regarding this recommendation.
    Comment 1: The Commission provided some general discussion of 
approaches to estimation of take, and recommends that the following 
methods be used consistently for all future incidental take 
authorizations: (1) Apply a 24-hour reset policy for enumerating the 
number of each species that could be taken during proposed activities, 
(2) apply standard rounding rules before summing the numbers of 
estimated takes across days, and (3) for species that have the 
potential to be taken but model-estimated or calculated takes round to 
zero, use group size to inform the take estimates.
    Response: Calculating predicted take is not an exact science and 
there are arguments for taking different mathematical approaches in 
different situations, and for making qualitative adjustments in other 
situations. NMFS is currently engaged in developing a protocol to guide 
more consistent take calculation given certain circumstances. We 
believe, however, that the methodology for this action remains 
appropriate.

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 observed within the bay 
during the course of this project's monitoring. 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 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 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., 2016), 
and the likelihood that animals that reproduce on the islands offshore 
of Baja California and mainland Mexico--where the population is also 
increasing--could move through the project area during migration. A 
juvenile elephant seal was observed near the fuel pier in April 2015.
    Note that common dolphins could be either short-beaked (Delphinus 
delphis delphis) or long-beaked (D. delphis bairdii). 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 stock.
    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 July 26, 2016). 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 1 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 (2016). 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., 2016).

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                                           Table 1--Marine Mammals Potentially Present in the Vicinity of NBPL
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                                                                                     Stock abundance (CV,                         Relative occurrence in
              Species                         Stock             ESA/MMPA status;       Nmin, most recent     PBR \3\   Annual M/   San Diego Bay; season
                                                              strategic (Y/N) \1\    abundance survey) \2\               SI \4\        of occurrence
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                                          Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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                                                                  Family Eschrichtiidae
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Gray whale.........................  Eastern North Pacific.  -; N                   20,990 (0.05; 20,125;         624        132  Occasional migratory
                                                                                     2011).                                        visitor; winter.
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                                            Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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                                                                   Family Delphinidae
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Bottlenose dolphin.................  California coastal....  -; N                   323 \5\ (0.13; 290;           2.4        0.2  Common; year-round.
                                                                                     2005).
Short-beaked common dolphin........  California/Oregon/      -; N                   411,211 (0.21;              3,440         64  Occasional; year-round
                                      Washington.                                    343,990; 2008).                               (but more common in
                                                                                                                                   warm season).
Long-beaked common dolphin.........  California............  -; N                   107,016 (0.42; 76,224;        610       13.8  Occasional; year-round
                                                                                     2009).                                        (but more common in
                                                                                                                                   warm season).
Pacific white-sided dolphin........  California/Oregon/      -; N                   26,930 (0.28; 21,406;         171       17.8  Uncommon; year-round.
                                      Washington.                                    2008).
Risso's dolphin....................  California/Oregon/      -; N                   6,272 (0.3; 4,913;             39        1.6  Rare; year-round (but
                                      Washington.                                    2008).                                        more common in cool
                                                                                                                                   season).
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                                                         Order Carnivora--Superfamily Pinnipedia
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                                                      Family Otariidae (eared seals and sea lions)
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California sea lion................  U.S...................  -; N                   296,750 (n/a; 153,337;      9,200        389  Abundant; year-round.
                                                                                     2011).
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                                                             Family Phocidae (earless seals)
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Harbor seal........................  California............  -; N                   30,968 (n/a; 27,348;        1,641         43  Common; year-round.
                                                                                     2012).
Northern elephant seal.............  California breeding...  -; N                   179,000 (n/a; 81,368;       4,882        8.8  Rare; year-round.
                                                                                     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).

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 (81 FR 
52637; August 9, 2016).

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.

[[Page 66632]]

    The mitigation strategies described below largely follow those 
required and successfully implemented under the first three IHAs 
associated with this project. For this IHA, data from acoustic 
monitoring conducted during the first three 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 avoid the potential for 
acoustic injury. 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 or minimizing potential for some outcome for marine 
mammals, such as auditory injury or severe behavioral reactions. In 
this case, neither serious injury nor death are likely outcomes even in 
the absence of mitigation measures due to the nature of the specified 
activity. A minimum shutdown zone of 10 m will be established during 
all pile driving and removal activities. In addition the Navy will 
implement shutdown zones that are intended to significantly reduce the 
potential for Level A harassment. 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 
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. 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 sound 
pressure levels (SPL) equal or exceed 160 and 120 dB root mean square 
(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'').
    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 fourth 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

[[Page 66633]]

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 would occur only from 45 minutes after 
sunrise to 45 minutes before sunset.

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 impact pile 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 impact pile driving work and 
at any time following a cessation of impact pile driving of thirty 
minutes or longer; the requirement to implement soft start for impact 
driving is independent of whether vibratory driving has occurred within 
the prior 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).

[[Page 66634]]

     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. This will 
include collection of acoustic data for activities and pile types for 
which sufficient data has not previously been collected, including for 
diamond saw cutting of caissons during fuel pier demolition. The Navy 
also plans to collect acoustic data for removal of 30-in steel piles 
via either vibratory extraction or torch cutting.
     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.

Acoustic Measurements

    The primary purpose of acoustic monitoring is to empirically verify 
modeled disturbance zones (defined at radial distances to NMFS-
specified thresholds; 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 may be revised as necessary to encompass 
actual ZOIs. 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.
    No acoustic data will be collected for 30-in steel piles as 
sufficient data has been collected for 36-in steel piles during 
previous years. For other activities, such as fender pile driving and 
demolition, the Navy will continue to collect in situ acoustic data to 
validate source levels and ZOIs. 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). Full details of acoustic monitoring requirements may be found 
in section 4.2 of the Navy's Monitoring Plan.

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 3.2 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:
     Marine mammal observers (MMO) 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 in the most effective position near 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 will record all 
marine mammal sightings beyond these distances provided it did not 
interfere with their effectiveness at carrying out the shutdown 
procedures. 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.
    During driving of steel piles, at least four additional MMOs (five 
total) will be deployed. Three of the five MMOs will be positioned in 
various pier-based locations around the new fuel pier to monitor the 
ZOIs. Two of these will be stationed at the north and south ends of the 
second deck of the new pier, and one MMO will be stationed on a second 
story balcony of a building on the existing pier. This building is 
scheduled to be demolished as part of the project. When the building is 
removed, a suitable secondary location with similar visibility will be 
used as an observation location. One MMO will be positioned in a boat 
at or near floating docks associated, and will focus on the furthest 
extent of the 450-m cetacean shutdown ZOI. The fifth MMO will be 
positioned on a second-story balcony of a Navy building on Ballast 
Point at the entrance to San Diego Bay, will focus on the furthest 
extent of the Level B ZOIs, and will monitor for marine mammals as they 
enter or exit San Diego Bay.

[[Page 66635]]

    One additional team member--the ``Command'' position--will remain 
on the construction barge for the duration of monitoring efforts, and 
will log pile driving start and stop times. This position will act as a 
secondary MMO during monitoring efforts, but will not log marine 
species observations as part of their normal duties. They will use 
either verbal or visual communication procedures to stop active 
construction if an animal enters the shutdown zones.
    During driving of 24 x 30-in concrete fender piles, two MMOs and 
the additional ``Command'' team member will be on duty. The two MMOs 
will be stationed on the second deck of the new fuel pier in the most 
appropriate locations. During driving of the 16-in poly-concrete pile, 
one MMO and the ``Command'' position will be on duty. One MMO will be 
on duty during demolition using the diamond saw. During activity at the 
NMAWC site, at least two MMOs will be on duty and will be located at 
the most appropriate positions.
    The MMOs will record all visible marine mammal sightings. Confirmed 
takes will be registered once the sightings data has been overlaid with 
the appropriate zones visualized in Figures 6-2, 6-3, and 6-4 of the 
Navy's application, or based on refined acoustic data, if amendments to 
the ZOIs are needed. Acousticians on duty may 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 will 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 western North Pacific 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 3 activities, the Navy did not exceed the 
take levels authorized under the IHA. Previous acoustic and marine 
mammal monitoring results were detailed in our Federal Register notice 
of proposed authorization (81 FR 52637; August 9, 2016) 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.
    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

[[Page 66636]]

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. In this case, we have 
acoustic data from project monitoring that provides empirical 
information regarding the sound fields likely produced by project 
activities.
    We provided detailed information regarding 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 (81 
FR 52637; August 9, 2016). 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. 
Total estimated incidents of take are shown in Table 3. Please see our 
Federal Register notice of proposed authorization (81 FR 52637; August 
9, 2016) for full details of the process and information used in 
estimating potential incidents of take.

Technical Guidance for Assessing the Effects of Anthropogenic Sound on 
Marine Mammal Hearing

    On August 4, 2016, NMFS released its Technical Guidance for 
Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing 
(Guidance). This new guidance established new thresholds for predicting 
auditory injury, or permanent threshold shift (PTS), which equates to 
Level A harassment under the MMPA. In the August 4, 2016, Federal 
Register notice announcing the Guidance (81 FR 51694), NMFS explained 
the approach it would take during a transition period, wherein we 
balance the need to consider this new best available science with the 
fact that some applicants have already committed time and resources to 
the development of analyses based on our previous thresholds and have 
constraints that preclude the recalculation of take estimates, as well 
as consideration of where the action is in the agency's decision-making 
pipeline. In that notice, we included a non-exhaustive list of factors 
that would inform the most appropriate approach for considering the new 
guidance, including: The scope of effects; how far in the process the 
applicant has progressed; when the authorization is needed; the cost 
and complexity of the analysis; and the degree to which the guidance is 
expected to affect our analysis.
    In this case, Navy submitted a timely request for authorization 
that was determined to be adequate and complete prior to availability 
of the guidance and indicated that they would need to receive an IHA 
(if issued) by September 2016. The Navy's analysis considered the 
potential for auditory injury to marine mammals, but ultimately 
concluded that injury would be unlikely to occur due to their robust 
mitigation measures. As described previously, the Navy calculated Level 
A harassment mitigation zones on the basis of NMFS' then-current 
thresholds for onset of permanent threshold shift (i.e., 180/190 dB 
rms), and then increased the size of those zones by adding buffers 
intended to further minimize the potential for Level A harassment. 
Following release of the new Guidance, we have considered the likely 
implications for potential auditory injury of marine mammals. Based on 
the Guidance, likely injury zones would increase in size for two 
hearing groups that might be present in the Navy's project area. 
However, low-frequency cetaceans (e.g., gray whales) rarely enter San 
Diego Bay and are extremely unlikely to approach the fuel pier 
construction area within several hundred meters. Phocid pinnipeds 
(e.g., harbor seals) are more likely to be present in the construction 
area and to approach more closely, but the Navy's existing buffered 
shutdown zone for all pinnipeds (150 m) is larger than the injury zone 
indicated by the new guidance. Potential injury zones for other species 
expected to be present (e.g., bottlenose dolphin, California sea lion) 
are much smaller than previously expected (less than 10 m).
    When the Navy's mitigation is considered in combination with the 
fact that many marine mammals would be expected to intentionally avoid 
making close approaches to this stationary acoustic source, we believe 
that injury is unlikely. In summary, we have considered the new 
Guidance and believe that the likelihood of injury is adequately 
addressed in the analysis and appropriate protective measures are in 
place in the IHA.

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 2; and,
    In this case, the estimation of marine mammal takes 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

    The ZOI impact area is estimated using the relevant distances and

[[Page 66637]]

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.

        Table 2--Areas of Acoustic Influence and Days of Activity
------------------------------------------------------------------------
                Activity                  Number of days    ZOI (km\2\)
------------------------------------------------------------------------
Impact and vibratory driving, 30-in                   24          5.6752
 steel piles \1\........................
Vibratory removal, 30-in steel piles....               6          5.6752
Impact driving, 24x32-in concrete piles.              28          0.5377
Impact driving, 16-in concrete-filled                  1          0.2180
 fiberglass piles.......................
Diamond saw cutting.....................              69          0.8842
Impact driving, 16-in concrete piles                  10          0.0436
 (NMAWC)................................
Vibratory removal, 16-in concrete piles                8          2.7913
 (NMAWC)................................
------------------------------------------------------------------------
\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 100 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 3 for total estimated incidents of take.

                                                  Table 3--Calculations for Incidental Take Estimation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Impact
                                                    Vibratory      Impact      driving,                   Impact     Vibratory        Total proposed
               Species                  Density      driving/     driving,    concrete/   Diamond saw    driving,     removal,   authorized takes  (% of
                                                     removal,     concrete    fiberglass                 concrete     concrete         total stock)
                                                    steel \1\     24 x 30       16-in                    (NMAWC)      (NMAWC)
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion.................      15.9201        2,710          240            3          971            7          113              4,044 (1.4)
Harbor seal.........................       0.4987           85            8            0           30            0            4                127 (0.4)
Bottlenose dolphin..................       1.2493          213           19            0           76            1            9           \2\ 318 (64.0)
Common dolphin......................       1.5277          260           23            0           93            1           11   \3\ 388 (0.4 [LB]/ 0.1
                                                                                                                                                   [SB])
Gray whale..........................        0.115           20            2            0            7            0            1                 30 (0.1)
Northern elephant seal..............       0.0508            9            1            0            3            0            0                13 (0.01)
Pacific white-sided dolphin.........       0.0493            8            1            0            3            0            0                12 (0.04)
Risso's dolphin.....................       0.2029           35            3            0           12            0            1                 51 (0.8)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ We assume that impact driving of steel piles would occur on the same day as vibratory driving of the same piles and that the zone for vibratory
  driving would always subsume the zone for impact driving. Therefore, separate estimates are not provided for impact driving of steel piles.
\2\ Total stock assumed to be 500 for purposes of calculation.
\3\ LB = long-beaked; SB = short-beaked.

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.
    Construction and demolition 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

[[Page 66638]]

occur if individuals of these species are present in the ensonified 
zone when pile driving or removal 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 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 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.
    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 planned 
monitoring and mitigation measures, we find that the total marine 
mammal take from Navy's pier replacement activities will have a 
negligible impact on the affected marine mammal species or stocks.

Small Numbers Analysis

    The number of incidents of take 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 3) 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.

[[Page 66639]]

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 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 2016-17 and the 2015-16 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 determine that the 
existing EA and FONSI provide adequate analysis related to the 
potential environmental effects of issuing an IHA to the Navy. 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, 2016 through October 7, 2017, provided the 
previously mentioned mitigation, monitoring, and reporting requirements 
are incorporated.

    Dated: September 23, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-23389 Filed 9-27-16; 8:45 am]
 BILLING CODE 3510-22-P