Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Coast Boulevard Improvements Project, La Jolla, California, 19221-19237 [2017-08402]
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Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices
Conclusion
Based on the criteria and findings
discussed above, we preliminarily
determine that critical circumstances
exist with respect to imports of
softwood lumber shipped by J.D. Irving
and ‘‘all others.’’ We preliminarily
determine that critical circumstances do
not exist with respect to Canfor,
Resolute, Tolko, and West Fraser.
Final Critical Circumstances
Determinations
We will issue final determinations
concerning critical circumstances when
we issue our final subsidy and lessthan-fair-value determinations. All
interested parties will have the
opportunity to address the Department’s
determinations with regard to critical
circumstances in case briefs to be
submitted after completion of the
preliminary subsidy and less than fair
value determinations.
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International Trade Commission
Notification
In accordance with sections 703(f)
and 733(f) of the Act, we will notify the
ITC of our determinations.
Suspension of Liquidation
In accordance with section 703(e)(2)
of the Act, because we have
preliminarily found that critical
circumstances exist with regard to
imports exported by certain producers
and exporters, if we make an affirmative
preliminary determination that
countervailable subsidies have been
provided to these same producers/
exporters at above de minimis rates,12
we will instruct U.S. Customs and
Border Protection (CBP) to suspend
liquidation of all entries of subject
merchandise from these producers/
exporters that are entered, or withdrawn
from warehouse, for consumption on or
after the date that is 90 days prior to the
effective date of ‘‘provisional measures’’
(e.g., the date of publication in the
Federal Register of the notice of an
affirmative preliminary determination
that countervailable subsidies have been
provided at above de minimis rates). At
such time, we will also instruct CBP to
require a cash deposit equal to the
estimated preliminary subsidy rates
reflected in the preliminary
determination published in the Federal
Register. This suspension of liquidation
will remain in effect until further notice.
In accordance with section 733(e)(2)
of the Act, because we have
preliminarily found that critical
circumstances exist with regard to
12 The preliminary subsidy determination is
currently scheduled for April 24, 2017.
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imports exported by certain producers
and exporters, if we make an affirmative
preliminary determination that sales at
less than fair value have been made by
these same producers/exporters at above
de minimis rates, we will instruct CBP
to suspend liquidation of all entries of
subject merchandise from these
producers/exporters that are entered, or
withdrawn from warehouse, for
consumption on or after the date that is
90 days prior to the effective date of
‘‘provisional measures’’ (e.g., the date of
publication in the Federal Register of
the notice of an affirmative preliminary
determination of sales at less than fair
value at above de minimis rates). At
such time, we will also instruct CBP to
require a cash deposit equal to the
estimated preliminary dumping margins
reflected in the preliminary
determination published in the Federal
Register. This suspension of liquidation
will remain in effect until further notice.
This notice is issued and published
pursuant to section 777(i) of the Act and
19 CFR 351.206(C)(2).
Dated: April 13, 2017.
Ronald K. Lorentzen,
Acting Assistant Secretary for Enforcement
and Compliance.
[FR Doc. 2017–08469 Filed 4–25–17; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648–XF319
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to Coast
Boulevard Improvements Project, La
Jolla, California
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed incidental harassment
authorization (IHA); request for
comments.
AGENCY:
NMFS has received a request
from the City of San Diego for
authorization to take marine mammals
incidental to Coast Boulevard
improvements in La Jolla, California.
Pursuant to the Marine Mammal
Protection Act (MMPA), NMFS is
requesting comments on its proposal to
issue an IHA to incidentally take marine
mammals during the specified activities.
DATES: Comments and information must
be received no later than May 26, 2017.
SUMMARY:
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Comments should be
addressed to Jolie Harrison, Chief,
Permits and Conservation Division,
Office of Protected Resources, National
Marine Fisheries Service. Physical
comments should be sent to 1315 EastWest Highway, Silver Spring, MD 20910
and electronic comments should be sent
to ITP.Carduner@noaa.gov.
Instructions: NMFS is not responsible
for comments sent by any other method,
to any other address or individual, or
received after the end of the comment
period. Comments received
electronically, including all
attachments, must not exceed a 25megabyte file size. Attachments to
electronic comments will be accepted in
Microsoft Word or Excel or Adobe PDF
file formats only. All comments
received are a part of the public record
and will generally be posted online at
www.nmfs.noaa.gov/pr/permits/
incidental/construction.htm without
change. All personal identifying
information (e.g., name, address)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit confidential business
information or otherwise sensitive or
protected information.
FOR FURTHER INFORMATION CONTACT:
Jordan Carduner, Office of Protected
Resources, NMFS, (301) 427–8401.
Electronic copies of the 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.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
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.
An 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
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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.
The MMPA states that the term ‘‘take’’
means to harass, hunt, capture, kill or
attempt to harass, hunt, capture, or kill
any marine mammal.
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).
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National Environmental Policy Act
To comply with the National
Environmental Policy Act of 1969
(NEPA; 42 U.S.C. 4321 et seq.) and
NOAA Administrative Order (NAO)
216–6A, NMFS must review our
proposed action with respect to
environmental consequences on the
human environment.
Accordingly, NMFS has preliminarily
determined that the issuance of the
proposed IHA qualifies to be
categorically excluded from further
NEPA review. This action is consistent
with categories of activities identified in
CE B4 of the Companion Manual for
NOAA Administrative Order 216–6A,
which do not individually or
cumulatively have the potential for
significant impacts on the quality of the
human environment and for which we
have not identified any extraordinary
circumstances that would preclude this
categorical exclusion.
We will review all comments
submitted in response to this notice
prior to concluding our NEPA process
in making a final decision on the IHA
request.
Summary of Request
NMFS received a request from the
City of San Diego (City) for an IHA to
take marine mammals incidental to
Coast Boulevard improvements in La
Jolla, California. The City’s request was
for harassment only and NMFS concurs
that mortality is not expected to result
from this activity. Therefore, an IHA is
appropriate.
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The City’s application for incidental
take authorization was received on
December 16, 2016. On March 1, 2017,
we deemed the City’s application for
authorization to be adequate and
complete. The planned activity is not
expected to exceed one year, hence we
do not expect subsequent MMPA
incidental harassment authorizations
would be issued for this particular
activity.
The planned activities include
improvements to an existing public
parking lot, sidewalk, and landscaping
areas located on the bluff tops above
Children’s Pool, a public beach located
in La Jolla, California. Species that are
expected to be taken by the planned
activity include harbor seal, California
sea lion, and northern elephant seal.
Take by Level B harassment only is
expected; no injury or mortality of
marine mammals is expected to result
from the proposed activity. This would
be the first IHA issued for this activity,
if issued. The City applied for, and was
granted, IHAs in 2013 2014 and 2015
(NMFS 2013; 2014; 2015) for a lifeguard
station demolition and construction
project at Children’s Pool beach. NMFS
published notices in the Federal
Register announcing the issuance of
these IHAs on July 8, 2013 (78 FR
40705), June 6, 2014 (79 FR 32699), and
July 13, 2015 (80 FR 39999),
respectively. The City also applied for,
and was granted, an IHA in 2016 (NMFS
2016) for a sand sampling project at
Children’s Pool beach. NMFS published
a notice in the Federal Register
announcing the issuance of the IHA on
June 3, 2016 (81FR 35739).
Description of Proposed Activity
Overview
The City of San Diego plans to
conduct improvements to an existing
public parking lot, sidewalk, and
landscaping areas located on the bluff
tops above Children’s Pool to upgrade
public access and safety. Demolition
activities would include the removal of
existing parking lot paving; concrete
curb, gutter, and sidewalk; and the
removal of existing irrigation and plant
materials. Construction activities would
include subgrade preparation, asphalt
paving, and marking of parking stalls;
pouring of concrete curb, gutter, and
sidewalk; construction of rock walls,
installation of fencing, placement of
landscape boulders, installation of
landscaping and irrigation; and
finishing and clean up. The City has
requested an IHA for incidental take, via
Level B harassment only, of harbor seals
that routinely haul out on the beach
below the project, as well as California
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sea lions and northern elephant seals
that occasionally haul out on the beach.
The City has determined that noise
from demolition and construction
associated with the planned project has
the potential to result in behavioral
harassment of pinnipeds on Children’s
Pool. No injury or mortality of marine
mammals is expected as a result of the
planned activities. The expectation that
behavioral harassment of pinnipeds
would result from the planned activities
is based on monitoring reports from the
recent demolition and construction of
the Children’s Pool lifeguard station
project, for which the City was issued
Incidental Harassment Authorizations
in 2013, 2014 and 2015 (Hanan &
Associates 2016).
Dates and Duration
The planned project would occur
from June 1, 2017 through December 14,
2017. Activities would occur Monday
through Saturday only, and no work
would be planned on all applicable
California and Federal holidays. There
would be a total of 164 available days
during which project activities could
occur. No construction would occur
during the Seal Pupping Season
Moratorium (December 15 to May 15)
and for an additional two weeks to
accommodate lactation and weaning of
late season pups. Thus construction
would not occur from December 15th to
May 29th. The IHA, if issued, would be
valid from June 1, 2017 through
December 14, 2017.
Specified Geographic Region
The location of the project would be
La Jolla, California. All planned project
related activities would occur atop the
20 to 40-foot bluffs above Children’s
Pool beach, adjacent to the Children’s
Pool Lifeguard Station located at 8271⁄2
Coast Boulevard, La Jolla, California
(See Figure 1 of the City’s IHA
application).
Detailed Description of Specific
Activities
Children’s Pool beach was created in
1932 by building a breakwater wall that
allowed for a protected pool for
swimming. Since then, the pool has
partially filled with sand and the beach
has widened to approximately 50 meter
(m) (164 feet (ft)) at low tide. The
planned project would include
improvements to an existing public
parking lot, sidewalk, and landscaping
areas located on top of a coastal bluff
above Children’s Pool beach.
Components of the project include the
demolition and construction of an
asphalt parking lot; concrete curb,
gutter, and sidewalk; placement of
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landscape boulders; and the delivery
and hauling away of materials. These
components of the project would
require the use of a variety of heavy
equipment, machinery, and trucks, such
as concrete breaker, jackhammer,
backhoe, bobcat, dump trucks, cement/
pump truck, paver, and roller. See Table
1 for a description of the various project
components and potential associated
sound source levels (see ‘‘Potential
Effects of Specified Activities on Marine
19223
Mammals and their Habitat’’ later in this
document for a discussion of potential
effects of acoustic sources on marine
mammals).
TABLE 1—ACTIVITIES PLANNED DURING THE PROPOSED PROJECT AND ESTIMATED DURATION AND MAXIMUM SOUND
LEVELS
Task
Related activities
Mobilization & temporary
facilities.
Install: temporary perimeter fencing, temporary
utilities, temporary office trailer (if needed),
temporary sanitary facilities.
Remove hardscape (planters, curb and sidewalk) and landscaping, debris to be hauled
via Coast Boulevard.
Demolition & site clearing.
Site preparation & utilities.
Site improvements ........
Final inspection, demobilization.
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1 Tierra
Equipment required
Rough grade site, modify underground utilities if
necessary.
Construct concrete walls, curbs, and planters,
fine grade, irrigation, hardscape, landscape,
hand rail.
Remove construction equipment, inspection,
make corrections.
Maximum
sound level
from activities,
estimated at
1m (dB re 20
μPa) 1
Estimated dates and
duration
(weeks)
truck, backhoe, trailer,
small auger, hand/
power tools.
excavator, hydraulic
ram, jackhammer,
trucks, hand/power
tools.
loader, backhoe, truck
100
June 1–June 30 (4
weeks)
110
July 3–July 14 (2
weeks)
110
backhoe, truck, hand/
power tools, concrete
pump/truck, fork lift.
truck, hand/power tools
110
July 17–August 11 (4
weeks)
August 14–November 3
(12 weeks)
100
November 6–December
1 (4 weeks)
Data 2016
The equipment planned for use
during the proposed project is very
similar to that used during the
demolition and construction of the
Children’s Pool lifeguard station project.
Based on monitoring reports associated
with IHAs issued for the demolition and
construction of the Children’s Pool
lifeguard station project, equipment
used for that project caused sound
levels that resulted harassment (Level B)
of pinnipeds at Children’s Pool beach.
The highest sound levels estimated
during construction of the Children’s
Pool lifeguard station were 100 to 110
decibels (dB) root mean squared (rms).
Results of acoustic monitoring during
the lifeguard station project showed
peak values of 91 to 103 dB rms within
15 to 20 m (49 to 66 ft) of construction
activities (Hanan & Associates 2016).
Children’s Pool is designated as a
shared-use beach. The beach and
surrounding waters are used for
swimming, surfing, kayaking, diving,
tide pooling, and nature watching.
Harbor seals, in particular, draw many
visitors. During the harbor seal pupping
season (December 15 through May 15),
the beach is closed to the public.
Outside of the pupping season, beach
access and recreational uses are
permitted by the City, provided that
there is no direct harassment of harbor
seals. A guideline rope strung along the
upper part of the beach, as well as
signage, encourage the public to respect
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the seals in the area and view them at
a safe distance. Studies indicate that
harbor seals are habituated to human
presence at Children’s Pool (Tierra Data
2015); however, habituation or reaction
to human activity depends on the
individual seal and the circumstances.
Proposed mitigation, monitoring, and
reporting measures are described in
detail later in this document (please see
‘‘Proposed Mitigation’’ and ‘‘Proposed
Monitoring and Reporting’’).
Description of Marine Mammals in the
Area of Specified Activities
Three species are considered to cooccur with the City’s planned activities:
Harbor seals (Phoca vitulina), which are
by far the dominant observed marine
mammal in the project area, as well as
California sea lions (Zalophus
californianus) and northern elephant
seals (Mirounga angustirostris) which
also occasionally haul out in the project
area, in far lower numbers. This section
provides summary information
regarding local occurrence of these
species. We have reviewed the City’s
detailed species descriptions, including
life history information, for accuracy
and completeness and refer the reader to
Sections 3 and 4 of the City’s IHA
application, as well as to NMFS’s Stock
Assessment Reports (SAR;
www.nmfs.noaa.gov/pr/sars/), instead of
reprinting all of the information here.
Additional general information about
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these species (e.g., physical and
behavioral descriptions) may be found
on NMFS’s Web site
(www.nmfs.noaa.gov/pr/species/
mammals/).
Northern fur seals (Callorhinus
ursinus) and Guadalupe fur seals
(Arctocephalus townsendi) have been
observed at beaches near the project
location on rare occasions, and a
northern fur seal was recently observed
hauled out at La Jolla Cove, less than a
mile from Children’s Pool beach (pers
comm D. Hanan, Hanan & Associates, to
D. Youngkin, NMFS, Feb 4, 2016).
Beginning in January 2015, elevated
strandings of Guadalupe fur seal pups
and juveniles were observed in
California. The Working Group on
Marine Mammal Unusual Mortality
Events determined that the ongoing
stranding event meets the criteria for an
Unusual Mortality event (UME) and
declared strandings of Guadalupe fur
seals from 2015 through 2017 to be one
continuous UME. The causes and
mechanisms of this UME remain under
investigation. Fur seals do not generally
to haul out in urban mainland beaches
such as Children’s Pool, and their
presence would likely be attributed to
sickness or injury if they were observed
in the project location. Therefore, their
occurrence at Children’s Pool would be
considered extralimital and would not
be expected. Thus these species are not
considered further in this proposed
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IHA. The planned activities would not
be conducted if marine mammal species
other than those proposed for
authorization in this document were
present on Children’s Pool.
Table 2 lists all species with expected
potential for occurrence in the project
location and summarizes information
related to the population or stock,
including PBR, where known. For
taxonomy, we follow Committee on
Taxonomy (2016). For status of species,
we provide information regarding U.S.
regulatory status under the MMPA and
ESA. Abundance estimates presented
here represent the total number of
individuals that make up a given stock
or the total number estimated within a
particular study area. NMFS’s stock
abundance estimates for most species
represent the total estimate of
individuals within the geographic area,
if known, that comprises that stock. For
some species, this geographic area may
extend beyond U.S. waters. PBR,
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, is
considered in concert with known
sources of ongoing anthropogenic
mortality to assess the population-level
effects of the anticipated mortality from
a specific project (as described in
NMFS’s SARs). While no mortality is
anticipated or authorized here, PBR and
annual serious injury and mortality are
included here as gross indicators of the
status of the species and other threats.
All values presented in Table 2 are
the most recent available at the time of
publication and are available in NMFS’s
SARs (e.g., Carretta et al., 2016). Please
see the SARs, available at
www.nmfs.noaa.gov/pr/sars, for more
detailed accounts of these stocks’ status
and abundance.
TABLE 2—MARINE MAMMAL SPECIES POTENTIALLY PRESENT IN THE PROJECT AREA
Species
Stock abundance
(CV, Nmin, most recent
abundance survey) 2
ESA/MMPA status;
Strategic (Y/N) 1
Stock
PBR 3
Annual M/SI 4
Relative occurrence in
project area; season of
occurrence
Order Carnivora—Superfamily Pinnipedia
Family Otariidae (eared seals and sea lions)
California sea lion ...............
U.S. .......................
-; N ............................
296,750 (n/a; 153,337;
2011).
9,200
389
Abundant; year-round
Family Phocidae (earless seals)
Harbor seal .........................
Northern elephant seal .......
California ...............
California breeding
-; N ............................
-; N ............................
30,968 (n/a; 27,348; 2012)
179,000 (n/a; 81,368; 2010)
1,641
4,882
43
8.8
Rare; year-round
Rare; year-round
1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the
ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR 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 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; N
min is the minimum estimate of stock
abundance. In some cases, CV is not applicable.
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’s SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike).
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Harbor Seals
Harbor seals inhabit coastal and
estuarine waters and shoreline areas of
the northern hemisphere from temperate
to polar regions. The eastern North
Pacific subspecies is found from Baja
California north to the Aleutian Islands
and into the Bering Sea. Multiple lines
of evidence support the existence of
geographic structure among harbor seal
populations from California to Alaska
(Carretta et al., 2016). However, because
stock boundaries are difficult to
meaningfully draw from a biological
perspective, three separate harbor seal
stocks are recognized for management
purposes along the west coast of the
continental U.S.: (1) Washington inland
waters (2) Oregon and Washington
coast, and (3) California (Carretta et al.,
2016). Placement of a stock boundary at
the California-Oregon border is not
based on biology but is considered a
political and jurisdictional convenience
(Carretta et al., 2016). In addition,
harbor seals may occur in Mexican
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waters, but these animals are not
considered part of the California stock.
Only the California stock is expected to
be found in the project area.
Harbor seals are not protected under
the Endangered Species Act (ESA); the
California stock is not listed as depleted
under the MMPA, and is not considered
a strategic stock under the MMPA
because annual human-caused mortality
(43) is significantly less than the
calculated potential biological removal
(PBR; 1,641) (Carretta et al., 2016). The
population appears to be stabilizing at
what may be its carrying capacity and
fishery mortality is declining. The best
abundance estimate of the California
stock of harbor seals is 30,968 and the
minimum population size of this stock
is 27,348 individuals (Carretta et al.,
2016).
The beaches and rocks at, or near, the
Children’s Pool are known haul out sites
for harbor seals. Starting in the mid1990s there was an increase in numbers
of harbor seals using the beaches and
rocks in the area around Children’s Pool
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(Yochem and Stewart 1998). As a result,
the City commissioned several studies
for harbor seal abundance trends at this
site (Yochem and Stewart 1998; Hanan
& Associates 2004, 2011). Abundances
at any given time may range from a low
of 0 to 15 seals to a maximum that rarely
exceeds 200 seals at Children’s Pool,
and 250 individuals in the vicinity
(Linder 2011; Hanan & Associates 2014).
When abundances are low, seals tend
to cluster on the western side of
Children’s Pool, and when abundances
are high, the seals spread out along the
beach. A limiting factor to the maximum
number of individuals observed at
Children’s Pool at any given time likely
relates to the area available for haulouts
(Linder 2011). Several factors influence
the variability in harbor seal abundance,
including daily foraging and resting
patterns, season, weather conditions,
and movements by transient
individuals. Generally, the highest
abundances occur during the months of
April and May, at the end of the
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pupping season and beginning of the
molting season (Linder 2011).
Radio tagging and photographic
studies have identified that only a
portion of seals utilizing a haulout site
are present at any specific moment or
day (Hanan 1996, 2005; Gilbert et.al.
2005; Harvey and Goley 2011; Linder
2011; Hanan & Associates 2014). These
studies further indicate that seals are
constantly moving along the coast,
including to/from offshore islands
(California Channel Islands, Las Islas
Coronados). Linder (2011) estimated
that there may be as many as 600 harbor
seals using Children’s Pool beach during
a year associated with the coastal
movements of transient individuals, and
suggested that the haul out at Children’s
Pool Beach is possibly part of a regional
network of interconnected resting and
pupping sites.
California Sea Lion
California sea lions range from the
Gulf of California north to the Gulf of
Alaska, with breeding areas located in
the Gulf of California, western Baja
California, and southern California. Five
genetically distinct geographic
populations have been identified: (1)
Pacific Temperate, (2) Pacific
Subtropical, (3) Southern Gulf of
California, (4) Central Gulf of California
and (5) Northern Gulf of California
(Schramm et al., 2009). Rookeries for
the Pacific Temperate population are
found within U.S. waters and just south
of the U.S.-Mexico border, and animals
belonging to this population may be
found from the Gulf of Alaska to
Mexican waters off Baja California.
Animals belonging to other populations
(e.g., Pacific Subtropical) may range into
U.S. waters during non-breeding
periods. For management purposes, a
stock of California sea lions comprising
those animals at rookeries within the
U.S. is defined (i.e., the U.S. stock of
California sea lions) (Carretta et al.,
2016). Pup production at the Coronado
Islands rookery in Mexican waters is
considered an insignificant contribution
to the overall size of the Pacific
Temperate population (Lowry and
Maravilla-Chavez, 2005).
California sea lions are not protected
under the ESA and the U.S. stock of
California sea lions is not listed as
depleted under the MMPA. Total annual
human-caused mortality (389) is
substantially less than the PBR
(estimated at 9,200 per year); therefore,
California sea lions are not considered
a strategic stock under the MMPA.
There are indications that the California
sea lion may have reached or is
approaching carrying capacity, although
more data are needed to confirm that
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leveling in growth persists (Carretta et
al., 2016). The best abundance estimate
of the U.S. stock is 296,750 and the
minimum population size of this stock
is 153,337 individuals (Carretta et al.,
2016).
Beginning in January 2013, elevated
strandings of California sea lion pups
were observed in southern California,
with live sea lion strandings nearly
three times higher than the historical
average. Findings to date indicate that a
likely contributor to the large number of
stranded, malnourished pups was a
change in the availability of sea lion
prey for nursing mothers, especially
sardines. The Working Group on Marine
Mammal Unusual Mortality Events
determined that the ongoing stranding
event meets the criteria for a UME and
declared California sea lion strandings
from 2013 through 2016 to be one
continuous UME. The causes and
mechanisms of this event remain under
investigation (www.nmfs.noaa.gov/pr/
health/mmume/
californiasealions2013.htm).
California sea lions have been
observed in the water, or on the beach
or rocks at and near Children’s Pool,
though these areas are used only
occasionally as haulout locations for the
species (Yochem and Stewart 1998;
Hanan & Associates 2004, 2011; Linder
2011). Monitoring associated with the
Children’s Pool Lifeguard Station
construction project from June 28,
2015–June 27, 2016 documented a total
of 71 California sea lions on Children’s
Pool beach, as well as 83 California sea
lions on seal rock (an outcropping
approximately 91 m north of the beach);
five California sea lions on South Casa
Beach; and one California sea lion on
the offshore reef off South Casa Beach
(Hanan & Associates 2016). Observers
recorded data only during construction,
so it is possible there were more days
throughout the year in which California
sea lions hauled out on the beach.
Evaluation of Children’s Pool docent
data from 2014 to 2016 (Seal
Conservancy 2016), indicates that
California sea lions were observed on
Children’s Pool beach on 67 days in
2014, 14 days in 2015, and 95 days in
2016.
Northern Elephant Seals
Northern elephant seals gather at
breeding areas, located primarily on
offshore islands of Baja California and
California, from approximately
December to March before dispersing for
feeding. Males feed near the eastern
Aleutian Islands and in the Gulf of
Alaska, while females feed at sea south
of 45° N (Stewart and Huber, 1993; Le
Boeuf et al., 1993). Adults then return
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to land between March and August to
molt, with males returning later than
females, before dispersing again to their
respective feeding areas between
molting and the winter breeding season.
Populations of northern elephant seals
in the U.S. and Mexico are derived from
a few tens or hundreds of individuals
surviving in Mexico after being nearly
hunted to extinction (Stewart et al.,
1994). Given the recent derivation of
most rookeries, no genetic
differentiation would be expected.
Although movement and genetic
exchange continues between rookeries,
most elephant seals return to their natal
rookeries when they start breeding
(Huber et al., 1991). The California
breeding population is now
demographically isolated from the Baja
California population and is considered
to be a separate stock.
Northern elephant seals are not
protected under the ESA and the
California breeding population is not
listed as depleted under the MMPA.
Total annual human-caused mortality
(8.8) is substantially less than the PBR
(estimated at 4,882 per year); therefore,
northern elephant seals are not
considered a strategic stock under the
MMPA. Modeling of pup counts
indicates that the population has
reached its Maximum Net Productivity
Level, but has not yet reached carrying
capacity (Carretta et al., 2016). The best
abundance estimate of the California
breeding population of northern
elephant seals is 179,000 and the
minimum population size of this stock
is 81,368 individuals (Carretta et al.,
2016).
Northern elephant seals have been
observed in the water, or on the beach
or rocks at and near Children’s Pool,
though these areas are used only
occasionally as haulout locations for the
species (Yochem and Stewart 1998;
Hanan & Associates 2004, 2011; Linder
2011). During monitoring associated
with the Children’s Pool Lifeguard
Station construction project, juvenile
northern elephant seals were
documented on Children’s Pool beach
on a total of 26 days in the period from
June 28, 2015–June 27, 2016 (Hanan &
Associates 2016), and 28 days in the
period from June 28, 2014–June 27,
2015 (Hanan & Associates 2015).
Observers recorded data only during
construction, so it is possible there were
more days throughout the year in which
elephant seals hauled out on the beach.
Children’s Pool docent data indicates
that Northern elephant seals used the
beach as a haulout location on 38 days
in 2014 and 36 days in 2015 (Seal
Conservancy 2016).
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Potential Effects of Specified Activities
on Marine Mammals and Their Habitat
This section includes a summary and
discussion of the ways that components
of the specified activity may impact
marine mammals and their habitat. The
‘‘Estimated Take by Incidental
Harassment’’ section later in this
document will include a quantitative
analysis of the number of individuals
that are expected to be taken by this
activity. The ‘‘Negligible Impact
Analysis and Determination’’ section
will consider the content of this section,
the ‘‘Estimated Take by Incidental
Harassment’’ section, and the ‘‘Proposed
Mitigation’’ section, to draw
conclusions regarding the likely impacts
of these activities on the reproductive
success or survivorship of individuals
and how those impacts on individuals
are likely to impact marine mammal
species or stocks.
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Description of Sound Sources
Acoustic sources associated with the
City’s proposed activities are expected
to include various types of construction
and demolition equipment, such as
jackhammers, concrete saws, cement
pumps, and hand tools (Table 1). Sound
sources may be pulsed or non-pulsed.
Pulsed sound sources (e.g., sonic
booms, explosions, gunshots, impact
pile driving) produce signals that are
brief (typically considered to be less
than one second), broadband, atonal
transients (ANSI 1986; Harris 1998;
NIOSH 1998; ISO 2003; ANSI 2005) and
occur either as isolated events or
repeated in some succession. Pulsed
sounds are all characterized by a
relatively rapid rise from ambient
pressure to a maximal pressure value
followed by a rapid decay period that
may include a period of diminishing,
oscillating maximal and minimal
pressures, and generally have an
increased capacity to induce physical
injury as compared with sounds that
lack these features.
Non-pulsed sounds can be tonal,
narrowband, or broadband, brief or
prolonged, and may be either
continuous or non-continuous (ANSI
1995; NIOSH 1998). Some of these nonpulsed sounds can be transient signals
of short duration but without the
essential properties of pulses (e.g., rapid
rise time). Examples of non-pulsed
sounds include those produced by
rocket launches and landings, vessels,
aircraft, machinery operations such as
drilling or dredging, and vibratory pile
driving. The duration of such sounds, as
received at a distance, can be greatly
extended in a highly reverberant
environment.
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Sound travels in waves, the basic
components of which are frequency,
wavelength, velocity, and amplitude.
Frequency is the number of pressure
waves that pass by a reference point per
unit of time and is measured in hertz
(Hz) or cycles per second. Wavelength is
the distance between two peaks of a
sound wave; lower frequency sounds
have longer wavelengths than higher
frequency sounds and attenuate
(decrease) more rapidly in shallower
water. Amplitude is the height of the
sound pressure wave or the ‘loudness’
of a sound and is typically measured
using the decibel scale. A dB is the ratio
between a measured pressure (with
sound) and a reference pressure (sound
at a constant pressure, established by
scientific standards). It is a logarithmic
unit that accounts for large variations in
amplitude; therefore, relatively small
changes in dB ratings correspond to
large changes in sound pressure. When
referring to sound pressure levels (SPLs;
the sound force per unit area), sound is
referenced in the context of underwater
sound pressure to 1 microPascal (mPa).
One pascal is the pressure resulting
from a force of one newton exerted over
an area of one square meter. The source
level (SL) represents the sound level at
a distance of 1 m from the source
(referenced to 1 mPa). The received level
is the sound level at the listener’s
position. Note that all underwater sound
levels in this document are referenced
to a pressure of 1 mPa and all airborne
sound levels in this document are
referenced to a pressure of 20 mPa.
Root mean square (rms) is the
quadratic mean sound pressure over the
duration of an impulse, and is
calculated by squaring all of the sound
amplitudes, averaging the squares, and
then taking the square root of the
average (Urick 1983). Root mean square
accounts for both positive and negative
values; squaring the pressures makes all
values positive so that they may be
accounted for in the summation of
pressure levels (Hastings and Popper
2005). This measurement is often used
in the context of discussing behavioral
effects, in part because behavioral
effects, which often result from auditory
cues, may be better expressed through
averaged units than by peak pressures.
Acoustic Effects
Here, we first provide background
information on marine mammal hearing
before discussing the potential effects of
acoustic sources on marine mammals.
To appropriately assess the potential
effects of exposure to sound, it is
necessary to understand the frequency
ranges marine mammals are able to
hear. Current data indicate that not all
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marine mammal species have equal
hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au
and Hastings, 2008). To reflect this,
Southall et al. (2007) recommended that
marine mammals be divided into
functional hearing groups based on
directly measured or estimated hearing
ranges on the basis of available
behavioral response data, audiograms
derived using auditory evoked potential
techniques, anatomical modeling, and
other data. Subsequently, NMFS (2016)
described generalized hearing ranges for
these marine mammal hearing groups.
Generalized hearing ranges were chosen
based on the approximately 65 dB
threshold from the normalized
composite audiograms, with the
exception for lower limits for lowfrequency cetaceans where the lower
bound was deemed to be biologically
implausible and the lower bound from
Southall et al. (2007) retained. The
functional groups and the associated
frequencies are indicated below (note
that these frequency ranges correspond
to the range for the composite group,
with the entire range not necessarily
reflecting the capabilities of every
species within that group):
• Low-frequency cetaceans
(mysticetes): Generalized hearing is
estimated to occur between
approximately 7 Hz and 35 kHz, with
best hearing estimated to be from 100
Hz to 8 kHz;
• Mid-frequency cetaceans (larger
toothed whales, beaked whales, and
most delphinids): Generalized hearing is
estimated to occur between
approximately 150 Hz and 160 kHz,
with best hearing from 10 to less than
100 kHz;
• High-frequency cetaceans
(porpoises, river dolphins, and members
of the genera Kogia and
Cephalorhynchus; including two
members of the genus Lagenorhynchus,
on the basis of recent echolocation data
and genetic data): Generalized hearing is
estimated to occur between
approximately 275 Hz and 160 kHz.
• Pinnipeds in water; Phocidae (true
seals): Generalized hearing is estimated
to occur between approximately 50 Hz
to 86 kHz, with best hearing between 1–
50 kHz;
• Pinnipeds in water; Otariidae (eared
seals): Generalized hearing is estimated
to occur between 60 Hz and 39 kHz,
with best hearing between 2–48 kHz.
The pinniped functional hearing
group was modified from Southall et al.
(2007) on the basis of data indicating
that phocid species have consistently
demonstrated an extended frequency
range of hearing compared to otariids,
especially in the higher frequency range
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¨
(Hemila et al., 2006; Kastelein et al.,
2009; Reichmuth and Holt, 2013).
For more detail concerning these
groups and associated frequency ranges,
please see NMFS (2016) for a review of
available information. Three marine
mammal species (one otariid and two
phocid pinnipeds) have the reasonable
potential to co-occur with the proposed
survey activities. Please refer to Table 2.
The effects of sounds on marine
mammals are dependent on several
factors, including the species, size,
behavior (feeding, nursing, resting, etc.),
and depth (if underwater) of the animal;
the intensity and duration of the sound;
and the sound propagation properties of
the environment. Impacts to marine
species can result from physiological
and behavioral responses to both the
type and strength of the acoustic
signature (Viada et al., 2008). The type
and severity of behavioral impacts are
more difficult to define due to limited
studies addressing the behavioral effects
of sounds on marine mammals.
Potential effects from impulsive sound
sources can range in severity from
effects such as behavioral disturbance or
tactile perception to physical
discomfort, slight injury of the internal
organs and the auditory system, or
mortality (Yelverton et al., 1973).
The effects of sounds from the
proposed activities are expected to
result in behavioral disturbance of
marine mammals. Due to the expected
sound levels of the equipment proposed
for use and the distance of the planned
activity from marine mammal habitat,
the effects of sounds from the proposed
activities are not expected to result in
temporary or permanent hearing
impairment (TTS and PTS,
respectively), non-auditory physical or
physiological effects, or masking in
marine mammals. Data from monitoring
reports associated with IHAs issued
previously for similar activities in the
same location as the planned activities
provides further support for the
assertion that TTS, PTS, non-auditory
physical or physiological effects, and
masking are not likely to occur (Hanan
& Associates 2014; 2015; 2016).
Therefore, TTS, PTS, non-auditory
physical or physiological effects, and
masking are not discussed further in
this section.
Disturbance Reactions
Disturbance includes a variety of
effects, including subtle changes in
behavior, more conspicuous changes in
activities, and displacement. Behavioral
responses to sound are highly variable
and context-specific and reactions, if
any, depend on species, state of
maturity, experience, current activity,
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reproductive state, auditory sensitivity,
time of day, and many other factors
(Richardson et al., 1995; Wartzok et al.,
2003; Southall et al., 2007).
Habituation can occur when an
animal’s response to a stimulus wanes
with repeated exposure, usually in the
absence of unpleasant associated events
(Wartzok et al., 2003). Animals are most
likely to habituate to sounds that are
predictable and unvarying. The opposite
process is sensitization, when an
unpleasant experience leads to
subsequent responses, often in the form
of avoidance, at a lower level of
exposure. Behavioral state may affect
the type of response as well. For
example, animals that are resting may
show greater behavioral change in
response to disturbing sound levels than
animals that are highly motivated to
remain in an area for feeding
(Richardson et al., 1995; NRC, 2003;
Wartzok et al., 2003).
Controlled experiments with captive
marine mammals have shown
pronounced behavioral reactions,
including avoidance of loud underwater
sound sources (Ridgway et al., 1997;
Finneran et al., 2003). Observed
responses of wild marine mammals to
loud pulsed sound sources (typically
seismic guns or acoustic harassment
devices) have been varied but often
consist of avoidance behavior or other
behavioral changes suggesting
discomfort (Morton and Symonds, 2002;
Thorson and Reyff, 2006; see also
Gordon et al., 2004; Wartzok et al.,
2003; Nowacek et al., 2007).
The onset of noise can result in
temporary, short term changes in an
animal’s typical behavior and/or
avoidance of the affected area. These
behavioral changes may include
(Richardson et al., 1995): Reduced/
increased vocal activities; changing/
cessation of certain behavioral activities
(such as socializing or feeding); visible
startle response or aggressive behavior;
avoidance of areas where sound sources
are located; and/or flight responses.
The biological significance of many of
these behavioral disturbances is difficult
to predict, especially if the detected
disturbances appear minor. However,
the consequences of behavioral
modification could potentially be
biologically significant if the change
affects growth, survival, or
reproduction. The onset of behavioral
disturbance from anthropogenic sound
depends on both external factors
(characteristics of sound sources and
their paths) and the specific
characteristics of the receiving animals
(hearing, motivation, experience,
demography) and is difficult to predict
(Southall et al., 2007).
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Marine mammals that occur in the
project area could be exposed to
airborne sounds associated with
construction and demolition activities
that have the potential to result in
behavioral harassment, depending on an
animal’s distance from the sound.
Airborne sound could potentially affect
pinnipeds that are hauled out. Most
likely, airborne sound would cause
behavioral responses similar to those
discussed above in relation to
underwater sound. For instance,
anthropogenic sound could cause
hauled out pinnipeds to exhibit changes
in their normal behavior, such as
reduction in vocalizations, or cause
them to temporarily abandon their
habitat and move further from the
source. Hauled out pinnipeds may flush
into the water, which can potentially
result in pup abandonment. Sitespecific monitoring data described
below indicate that pup abandonment is
not likely to occur at this site as a result
of the specified activity.
Behavioral Responses of Pinnipeds to
Construction and Demolition
The City has monitored pinniped
responses to construction at Children’s
Pool beach for the past three years as a
requirement of previously issued IHAs
for construction of the lifeguard station
on the bluffs above Children’s Pool
(NMFS 2013; 2014; 2015). The
equipment associated with the planned
construction and demolition activities at
Coast Boulevard would be very similar
to the equipment associated with the
IHAs issued previously for the lifeguard
station construction project, sound
levels are expected to be substantially
similar, and the project location and
marine mammal species affected are
expected to be the same. Thus, we rely
on observational data on responses of
pinnipeds to demolition and
construction of the lifeguard station at
Children’s Pool beach in drawing
conclusions about expected pinniped
responses to sound associated with the
planned project.
NMFS previously issued three
consecutive IHAs to the City of San
Diego for the incidental take of marine
mammals associated with the
demolition of the existing lifeguard
station at Children’s Pool beach and the
construction of a new lifeguard station
at the same location, from June 2013
through June 2016 (NMFS 2013; 2014;
2015). The first IHA was effective June
28, 2013 through June 27, 2014; the
second IHA was valid June 28, 2014
through June 27, 2015; the third IHA
was valid June 28, 2015 through June
27, 2016. All of the IHAs authorized
take of Pacific harbor seals, California
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sea lions, and northern elephant seals,
in the form of Level B harassment,
incidental to demolition and
construction activities.
From 2013–2016, protected species
observers collected data over a total of
3,376 hourly counts at seven sites
around the project and Children’s Pool
beach. Observed reactions of pinnipeds
at Children’s Pool to demolition and
construction of the lifeguard station
ranged from no response to heads-up
alerts, from startle responses to some
movements on land, and some
movements into the water (Hanan &
Associates 2014; 2015; 2016). There
were no documented occurrences of
take by Level A harassment throughout
the three years of monitoring (Hanan &
Associates 2014; 2015; 2016). Data from
the three years of monitoring also
suggests there was no site abandonment
on the part of harbor seals a result of the
project (Hanan & Associates 2014; 2015;
2016). Based on the data from these
three previously issued IHAs, we expect
that any behavioral responses by
pinnipeds to the planned project would
be very similar to those that resulted
from the previously authorized lifeguard
station project: From no response to
heads-up alerts, startle responses, some
movements on land, and some
movements into the water (flushing).
Estimated Take by Incidental
Harassment
This section provides an estimate of
the number of incidental takes proposed
for authorization through this IHA,
which will inform both NMFS’
consideration of whether the number of
takes is ‘‘small’’ and the negligible
impact determination.
Harassment is the only type of take
expected to result from these activities.
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 authorized takes would be by
Level B harassment only, in the form of
disruption of behavioral patterns for
individual marine mammals resulting
from exposure to sounds associated
with the planned construction and
demolition activities. Based on the
nature of the activity, Level A
harassment is neither anticipated nor
proposed to be authorized. The death of
a marine mammal is also a type of
incidental take. However, in the case of
the planned project it is unlikely that
injurious or lethal takes would occur
even in the absence of the planned
mitigation and monitoring measures,
and no mortality is anticipated or
proposed to be authorized for this
activity. The current NMFS thresholds
for behavioral harassment of pinnipeds
from airborne noise are shown in Table
3.
TABLE 3—CURRENT NMFS CRITERIA
FOR PINNIPED HARASSMENT RESULTING FROM EXPOSURE TO AIRBORNE SOUND
Species
Harbor seals
Other
pinniped
species.
Level B
harassment
threshold
90 dB re 20
μPa.
100 dB re 20
μPa.
Level A
harassment
threshold
Not defined
Not defined
NMFS currently uses a three-tiered
scale to determine whether the response
of a pinniped on land to acoustic or
visual stimuli is considered an alert, a
movement, or a flush. NMFS considers
the behaviors that meet the definitions
of both movements and flushes to
qualify as behavioral harassment. Thus
a pinniped on land is considered by
NMFS to have been behaviorally
harassed if it moves greater than two
times its body length, or if the animal
is already moving and changes direction
and/or speed, or if the animal flushes
from land into the water. Animals that
become alert without such movements
are not considered harassed. See Table
4 for a summary of the pinniped
disturbance scale.
TABLE 4—LEVELS OF PINNIPED BEHAVIORAL DISTURBANCE ON LAND
Type of response
Definition
1 .........................
Alert ......................
2 .........................
Movement ............
3 .........................
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Level
Flush ....................
Seal head orientation or brief movement in response to disturbance, which may include turning head
towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position,
changing from a lying to a sitting position, or brief movement of less than twice the animal’s body
length.
Movements away from the source of disturbance, ranging from short withdrawals at least twice the animal’s body length to longer retreats over the beach, or if already moving a change of direction of
greater than 90 degrees.
All retreats (flushes) to the water.
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
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activity is considered, it can result in a
take estimate that overestimates the
number of individuals harassed. In
particular, for stationary activities such
as the proposed project, 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 is
stronger than the deterrence presented
by the harassing activity.
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The take calculations presented here
rely on the best information currently
available for marine mammal
populations in the Children’s Pool area.
Below we describe how the take was
estimated for the planned project.
Pacific Harbor Seal
The take estimate for harbor seal was
based on the following steps:
(1) Estimate the total area (m2) of
harbor seal haulout habitat available at
Children’s Pool;
(2) Estimate the total area of available
haulout habitat expected to be
ensonified to the airborne Level B
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harassment threshold for harbor seals
(90 dB re 20 mPa) based on total haulout
area and the percentage of total haulout
area expected to be ensonified to the
Level B harassment threshold;
(3) Estimate the daily number of seals
exposed to sounds above Level B
harassment threshold by multiplying
the total area of haulout habitat
expected to be ensonified to the Level
B threshold by the expected daily
number of seals on Children’s Pool;
(4) Estimate the total number of
anticipated harbor seals taken over the
duration of the project by multiplying
the daily number of seals exposed to
noise above the Level B harassment
threshold by the number of total project
days in which project-related sounds
may exceed the Level B harassment
threshold.
As described above, Children’s Pool is
designated as a shared-use beach. The
beach and surrounding waters are used
for swimming, surfing, kayaking, diving,
tide pooling, and nature watching, thus
the beach is shared between humans
and pinnipeds. To discourage people
from harassing pinnipeds hauled out on
the beach, a guideline rope, oriented
parallel to the water, bisects the beach
into upper (western) and lower (eastern)
beach areas; people are encouraged to
stay on the western side of the guideline
rope, allowing seals to use the eastern
section of beach that provides access to
the water. The City’s estimate of
available pinniped habitat was based on
the total area of the beach between the
guideline rope and the mean lower low
water line. Thus, the area considered for
this analysis to be available as haulout
habitat is the total area east of the rope
and west of the mean lower low water
line, while the area west of the rope is
assumed to be unavailable as pinniped
habitat (See Figure 5 in the IHA
application for the location of the
guideline rope, and the area assumed to
be available haulout habitat). The City
estimated that there are 2,509 m2 east of
the guideline rope; therefore it is
assumed that there is a total of 2,509 m2
of available pinniped habitat on
Children’s Pool (Figure 5 in IHA
application).
The City estimated the area of
available harbor seal habitat at
Children’s Pool beach that would be
ensonified to the Level B harassment
threshold by estimating the distance to
the Level B harassment threshold from
sounds associated with the planned
activities, then calculating the
percentage of available haulout habitat
at Children’s Pool that would be
ensonified to that threshold based on
the total available habitat and the
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distance to the Level B harassment
threshold.
To estimate the distance to the in-air
Level B harassment threshold for harbor
seals (90 dB rms) for the planned
project, the City first used a spherical
spreading loss model, assuming average
atmospheric conditions. The spreading
loss model predicted that the 90 dB
isopleth would be reached at 10 m (33
ft). However, data from in situ
recordings conducted during the
lifeguard station project at Children’s
Pool indicated that peak sound levels of
90 to 103 dB were recorded at distances
of 15 m to 20 m (49 to 66 ft) from the
source when the loudest construction
equipment (source levels ranging from
100 to 110 dB) was operating. The City
estimated that the loudest potential
sound sources associated with the
planned project would be
approximately 110 dB rms (Table 1),
based on manufacturer specifications
and previous recordings of similar
equipment used during the lifeguard
station project at Children’s Pool (Hanan
& Associates 2014; 2015; 2016).
Therefore, the City estimated that for the
sound sources expected to result in the
largest isopleths (those with SLs
estimated at up to 110 dB), the area
expected to be ensonified to the in-air
Level B harassment threshold for harbor
seals (90 dB rms) would extend to
approximately 20 m from the sound
source. To be conservative, the City
used this distance (20 m) based on the
data from previous site-specific
monitoring, rather than the results of the
spherical spreading loss model, to
estimate the predicted distance to the
in-air Level B harassment threshold for
harbor seals.
Based on the estimated distance to the
in-air Level B harassment threshold for
harbor seals (20 m from the sound
source), the City estimated 647 m2 of
total available harbor seal habitat at
Children’s Pool beach would be
ensonified to the Level B harassment
threshold, the City therefore estimated
that approximately 25.8 percent (647/
2,509) of available harbor seal haulout
habitat at Children’s Pool beach would
be ensonified to the Level B harassment
threshold (Figure 5 in IHA application).
This information has been used to
derive the take estimate only; the entire
beach would be observed in order to
document potential actual take.
The estimated daily take of harbor
seals was based on the number of harbor
seals expected to occur daily in the area
ensonified to the Level B harassment
threshold. In their IHA application, the
City estimated that 200 harbor seals
would be present on Children’s Pool
beach per day, based on literature that
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reported this number as the maximum
number of seals recorded at Children’s
Pool (Linder 2011). However, NMFS
believes it is more appropriate to use the
average number of seals observed on
Children’s Pool beach, as opposed to the
maximum number of seals, to estimate
the likely number of takes of harbor
seals as a result of the planned project.
During 3,376 hourly counts associated
with monitoring for IHAs issued for
construction and demolition at the
lifeguard station at Children’s Pool in
2013–14, 2014–15, and 2015–16, there
was an average of 54.5 harbor seals
(including pups) recorded daily on
Children’s Pool beach (pers. comm., D.
Hanan, Hanan & Associates, to J.
Carduner, NMFS, April 04, 2017). We
therefore estimated that 55 harbor seals
would occur on Children’s Pool per day,
and used this number to estimate take
of harbor seals as a result of the planned
project. Based on an estimate of 55 total
harbor seals on Children’s Pool per day,
and an estimated 25.8 percent of total
haulout habitat ensonified to the Level
B harassment threshold for harbor seals,
we estimated that an average of 14.2
(rounded to 15) takes of harbor seals by
Level B harassment would occur per
day.
The City estimated that the total
duration of the project would be 164
days. However, activities involving
equipment that could result in sound
source levels of 101–110 dB would
occur on a maximum of 108 project days
(pers. comm., D. Langsford, Tierra Data,
to, J. Carduner, NMFS, April 03, 2017).
Based on the distance of the project to
Children’s Pool and previous
monitoring reports, we believe it is
unlikely that project-related activities
with expected source levels at or below
100 dB rms would result in sound
exposure levels at or above 90 dB among
any pinnipeds at Children’s Pool.
Planned project-related activities would
occur on top of a natural cliff in an area
of increasing elevation above the beach,
therefore we do not believe visual
stimuli from the project would result in
behavioral harassment of any marine
mammals. Therefore, we do not expect
that activities with expected source
levels of 100 dB and below would result
in take of marine mammals. Thus, our
take estimate is based on the number of
days in which source levels associated
with the planned project could be
between 100 and 110 dB rms. Based on
an estimate of 15 takes of harbor seals
per day by Level B harassment, over a
total of 108 days the project would be
expected to result in a total of 1,620
takes of harbor seals by Level B
harassment. We therefore propose to
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authorize a total of 1,620 incidental
takes of harbor seals by Level B
harassment only. The City requested
authorization for the 8,528 takes of
harbor seals, however, based on the
rationale described above, we propose
to authorize 1,620 incidental takes of
1,620 harbor seals.
California Sea Lion
As described above, California sea
lions are occasional visitors to
Children’s Pool. The most reliable
estimates of likely California sea lion
occurrence in the project area come
from monitoring reports associated with
IHAs issued previously for demolition
and construction of the lifeguard station
at Children’s Pool. In 2015–16 there
were 71 observations of California sea
lions on Children’s Pool over 209 days
of monitoring, for an average of one
California sea lion observed on
Children’s Pool approximately every
three days. Based on this ratio, we
estimate that a total of 55 observations
of California sea lions on Children’s
Pool during the entire duration of the
project (164 days); however as described
above we do not think take is likely to
occur on days in which source levels are
below 100 dB. We expect one take of
California sea lion would occur for
every 3 days of the project in which
source levels are anticipated to be
between 101–110 dB (108 total days).
We therefore propose to authorize 36
incidental takes of California sea lions
by Level B harassment only. This is
considered a conservative estimate as
the threshold for Level B harassment for
California sea lions is different than that
for harbor seals (Table 3). The City
requested authorization for 100 takes of
California sea lions, however we instead
propose to authorize 36 incidental takes
of California sea lions.
Northern Elephant Seal
As described above, northern
elephant seals are occasional visitors to
Children’s Pool. The most reliable
estimates of likely northern elephant
seal occurrence in the project area come
from monitoring reports associated with
IHAs issued previously for demolition
and construction of the lifeguard station
at Children’s Pool. In 2015–16 there
were 26 observations of northern
elephant seals on Children’s Pool over
209 days of monitoring, for an average
of one northern elephant seal observed
on Children’s Pool approximately every
eight days. Based on this ratio, we
estimate a total of 20 northern elephant
seals would be observed on Children’s
Pool during the entire duration of the
project (164 days); however as described
above we do not think take is likely to
occur on days in which source levels are
below 100 dB. We expect one northern
elephant seal take would occur for every
eight days of the project in which source
levels are anticipated to be between
101–110 dB (108 total days). We
therefore propose to authorize 14
incidental takes of northern elephant
seals by Level B harassment only. This
is considered a conservative estimate as
the threshold for Level B harassment for
northern elephant seals is different than
that for harbor seals (Table 3). The City
requested authorization for 50 takes of
northern elephant seals, however we
instead propose to authorize 14
incidental takes of northern elephant
seals.
TABLE 5—SUMMARY OF ESTIMATED NUMBERS OF MARINE MAMMALS POTENTIALLY TAKEN BY THE PLANNED PROJECT
Level A
takes
Species
Harbor seal ..............................................................................................................................................
California sea lion ....................................................................................................................................
Northern elephant seal ............................................................................................................................
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Effects of Specified Activities on
Subsistence Uses of Marine Mammals
There are no relevant subsistence uses
of marine mammals implicated by this
action. Therefore, NMFS has
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.
Proposed 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 (latter not
applicable for this action). NMFS
regulations require applicants for
incidental take authorizations to include
information about the availability and
feasibility (economic and technological)
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of equipment, methods, and manner of
conducting such activity or other means
of effecting the least practicable adverse
impact upon the affected species or
stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or
may not be appropriate to ensure the
least practicable impact on species or
stocks and their habitat, as well as
subsistence uses where applicable, we
carefully balance two primary factors:
(1) The manner in which, and the
degree to which, the successful
implementation of the measure(s) is
expected to reduce impacts to marine
mammals, marine mammal species or
stocks, and their habitat—which
considers the nature of the potential
adverse impact being mitigated
(likelihood, scope, range), as well as the
likelihood that the measure will be
effective if implemented; and the
likelihood of effective implementation,
and; (2) the practicability of the
measures for applicant implementation,
which may consider such things as cost,
impact on operations, and, in the case
of a military readiness activity,
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Level B
takes
0
0
0
1,620
36
14
Total
1,620
36
14
personnel safety, practicality of
implementation, and impact on the
effectiveness of the military readiness
activity.
Any mitigation measure(s) prescribed
by NMFS should be able to accomplish,
have a reasonable likelihood of
accomplishing (based on current
science), or contribute to the
accomplishment of one or more of the
general goals listed below:
1. Avoidance or minimization of
injury or death of marine mammals
wherever possible (goals 2, 3, and 4 may
contribute to this goal).
2. A reduction in the numbers of
marine mammals (total number or
number at biologically important time
or location) exposed to activities
expected to result in the take of marine
mammals (this goal may contribute to 1,
above, or to reducing harassment takes
only).
3. A reduction in the number of times
(total number or number at biologically
important time or location) individuals
would be exposed to activities expected
to result in the take of marine mammals
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(this goal may contribute to 1, above, or
to reducing harassment takes only).
4. A reduction in the intensity of
exposures (either total number or
number at biologically important time
or location) to activities expected to
result in the take of marine mammals
(this goal may contribute to 1, above, or
to reducing the severity of harassment
takes only).
5. Avoidance or minimization of
adverse effects to marine mammal
habitat, paying special attention to the
food base, activities that block or limit
passage to or from biologically
important areas, permanent destruction
of habitat, or temporary destruction/
disturbance of habitat during a
biologically important time.
6. For monitoring directly related to
mitigation—an increase in the
probability of detecting marine
mammals, thus allowing for more
effective implementation of the
mitigation.
Mitigation for Marine Mammals and
Their Habitat
The City has proposed several
mitigation measures. These measures
include the following:
• Moratorium during harbor seal
pupping season: Demolition and
construction would be prohibited
during the Pacific harbor seal pupping
season (December 15th to May 15th) and
for an additional two weeks to
accommodate lactation and weaning of
late season pups. Thus construction
would be prohibited from December
15th to May 29th. This measure is
designed to avoid any potential adverse
impacts to pups that may otherwise
occur, such as abandonment by mothers
as a result of harassment.
• Activities limited to daylight hours
only: Construction and demolition
would be limited to daylight hours only
(7 a.m. to 7 p.m., or 30 minutes before
sunset depending on time of year). This
measure is designed to facilitate the
ability of MMOs to effectively monitor
potential instances of harassment and to
accurately document behavioral
responses of pinnipeds to projectrelated activities.
• Timing constraints for very loud
equipment: To minimize potential
impacts to marine mammals,
construction and demolition activity
involving use of very loud equipment
(e.g., jackhammers) would be scheduled
during the daily period of lowest
pinniped haul-out occurrence, between
the hours of 8:30 a.m. to 3:30 p.m., to
the maximum extent practical. This
measure is designed to minimize the
number of pinnipeds exposed to sounds
that may result in harassment.
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Construction and demolition may be
extended from 7 a.m. to 7 p.m. (daylight
hours only) to help ensure the project is
completed in 2017, prior to the
moratorium during the harbor seal
pupping season starting December 15th,
so as to reduce the overall duration of
the project.
• Marine mammal observers (MMO):
Trained MMOs would be used to detect
and document project-related impacts to
marine mammals, including any
behavioral responses to the project. This
measure is designed to facilitate the
City’s ability to increase the
understanding of the effects of the
action on marine mammal species and
stocks. More information about this
measure is contained in the ‘‘Proposed
Monitoring’’ section below.
Based on our evaluation of the
applicant’s proposed measures, NMFS
has preliminarily determined that the
proposed mitigation measures provide
the means effecting the least practicable
impact on the affected species or stocks
and their habitat, paying particular
attention to rookeries, mating grounds,
and areas of similar significance.
Proposed 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 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.
Effective reporting is critical both to
compliance as well as ensuring that the
most value is obtained from the required
monitoring.
Monitoring and reporting
requirements prescribed by NMFS
should contribute to improved
understanding of one or more of the
following:
• Occurrence of marine mammal
species or stocks in the area in which
take is anticipated (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
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19231
action; or (4) biological or behavioral
context of exposure (e.g., age, calving or
feeding areas).
• Individual marine mammal
responses (behavioral or physiological)
to acoustic stressors (acute, chronic, or
cumulative), other stressors, or
cumulative impacts from multiple
stressors.
• How anticipated responses to
stressors impact either: (1) Long-term
fitness and survival of individual
marine mammals; or (2) populations,
species, or stocks.
• Effects on marine mammal habitat
(e.g., marine mammal prey species,
acoustic habitat, or other important
physical components of marine
mammal habitat).
• Mitigation and monitoring
effectiveness.
Proposed Monitoring
The City has developed a Monitoring
Plan specific to the project which
establishes protocols for both acoustic
and marine mammal monitoring. The
objectives of the Monitoring Plan are to
observe and document real-time sound
levels in the project area, to document
observed behavioral responses to project
activities, and to record instances of
marine mammal harassment.
Monitoring would be conducted before,
during, and after project activities to
evaluate the impacts of the project on
marine mammals. The Monitoring Plan
can be found in Appendix C of the
City’s IHA application.
The Monitoring Plan encompasses
both acoustic monitoring and marine
mammal monitoring. Marine mammal
monitoring would be conducted to
assess the number and species,
behavior, and responses of marine
mammals to project-related activities as
well as other sources of disturbance, as
applicable. Acoustic monitoring would
measure in-air sound pressure levels
during ambient conditions and during
project activities to measure sound
levels associated with the project and to
determine distances within which Level
B acoustic harassment disturbance are
expected to occur. More details are
provided below.
Acoustic Monitoring
Monitors would collect real-time
acoustic data of construction activities
to determine SPL values during
demolition and construction activities,
and to determine distances to zones
within which SPLs are expected to meet
or exceed airborne Level B harassment
thresholds for harbor seals and other
pinnipeds. Environmental data would
also be collected to provide information
on the weather, visibility, sea state, and
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tide conditions during monitoring
surveys.
Sound level meters would be used to
document SPLs at near-field and farfield locations during all surveys, and to
determine the distances to Level B
harassment thresholds. Far-field
locations will include the western end
of the beach, the middle of the guideline
rope and the eastern edge of the beach.
The total number and locations of the
monitoring stations would be
determined during each survey based on
the location of construction activities
and likelihood for sound levels to meet
or exceed in-air SPL harassment
thresholds in areas where marine
mammals are observed at Children’s
Pool. Refer to Section 3 of the
Monitoring Plan for further details on
the acoustic monitoring plan.
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Marine Mammal Monitoring
Marine mammal monitoring would be
conducted by qualified MMOs to
document behavioral responses of
marine mammals to the planned project.
Monitors would document the behavior
of marine mammals, the number and
types of responses to disturbance, and
the apparent cause of any reactions.
Marine mammals displaying behavioral
responses to disturbance would be
assessed for the apparent cause of
disturbance. All responses to stimuli
related to the project would be
documented; responses that rise to the
level of behavioral harassment (Table 4)
would be documented as takes.
Marine mammal observations may be
made from vantage points on the beach
or from overlook areas that provide an
unobstructed view of the beach.
Monitoring on the beach would be
behind the guideline rope to minimize
potential disturbance to hauled out
marine mammals.
The following data would be collected
during the marine mammal monitoring
surveys:
• Dates and times of marine mammal
observations.
• Location of observations.
• Construction activities occurring
during each observation period. Any
substantial change in construction
activities (especially cessation) during
observation periods should be noted.
• Human activity in the area; number
of people on the beach, adjacent
overlooks, and in the water.
• Counts by species of pinnipeds, and
if possible sex and age class.
• Number and type of responses to
disturbance, such as alert, flush,
vocalization, or other with a
description.
• Apparent cause of reaction.
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The extent of marine mammal
monitoring required would depend on
recorded sound levels of the activities
performed; sound levels would be
verified through acoustic monitoring as
described above. At the start of each
new phase of demolition and
construction (i.e., same type of activity
and equipment), a full day of marine
mammal monitoring would occur. This
monitoring would include a PreConstruction Activity Survey, hourly
Construction Activity Surveys, and a
Post-Construction Activity Survey. PreConstruction Activity Surveys would
include recordings of the times of
observations, environmental conditions,
and maximum ambient SPLs at the
recording location at the top of the bluff
adjacent to the project site, and at the
three far-field locations, and would
occur at least 30 minutes prior to the
start of construction activities. Hourly
Construction Activity Surveys would
record times of observations,
environmental conditions, and
maximum SPLs at near-field and farfield locations. Post-Construction
Activity Surveys would record times of
observations, environmental conditions,
and maximum ambient SPLs at all
monitoring locations surveyed during
the Construction Activity Surveys.
Marine mammal monitoring data will be
collected, as noted above. The number
of days of subsequent monitoring
required after the first day of monitoring
for each new construction phase would
depend on the results of acoustic
monitoring, as follows:
(a) If Acoustic monitoring on the first
day of a new phase of construction
documents sound levels of 90 dB rms or
greater at any far-field location, then
daily monitoring would be required
throughout that phase of construction.
(b) If Acoustic monitoring on the first
day of a new phase of construction
documents sound levels of 90 dB rms or
greater at the near-field location, but not
at any far-field location, then a
minimum of two additional days of
monitoring would be required to
confirm far-field sound levels remain
less than 90 dB rms for construction
phase durations of less than 4 weeks.
Monitoring would be conducted weekly
to confirm far-field sound levels remain
less than 90 dB rms for construction
phase durations of greater than 4 weeks.
If during the additional monitoring,
sound levels of 90 dB or greater are
recorded at any far-field location, then
daily monitoring would be required
until the end of that construction phase.
(c) If Acoustic monitoring on the first
day of a new phase of construction
documents sound levels of less than 90
dB rms at the near-field location(s), then
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one additional day of monitoring would
be conducted to confirm near-field
sound levels remain less than 90 dB
rms. If a sound level of greater than 90
dB rms is measured at the near-field
location on the second day of
monitoring, then additional days of
monitoring would be conducted
consistent with the specification listed
under item (b) above.
Marine mammal monitoring would be
conducted by a qualified MMO 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 the ability to
estimate target size and distance; use of
binoculars may be necessary to correctly
identify the target;
• A minimum of a Bachelor’s degree
in biological science, wildlife
management, mammalogy, or related
field;
• 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, and
identification of marine mammal
behavior;
• Sufficient training, orientation, or
experience with the construction
operation to provide for personal safety
during observations;
• 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 needed; and
• Writing skills sufficient to prepare a
report of observations.
As noted above, Guadalupe and
northern fur seals would be considered
extralimital to the project area; however,
as fur seals have been occasionally
observed in the area, the MMO would
ensure that take of fur seals is avoided.
In the event that a fur seal or another
species of marine mammal for which
take is not authorized in the IHA, if
issued, are observed either on the rocks,
beach, or in the water at Children’s Pool
prior to commencement of activities, the
MMO would alert the stranding
network, as the occurrence of these
species would typically indicate a sick/
injured animal, and activities would be
postponed until coordination with the
stranding network is complete
(including any potential 24-hour or 48hour wait/observation period) and/or
the animal either leaves, or is collected
by the stranding network.
Marine mammal monitoring protocols
are described in greater detail in Section
4 of the City’s Monitoring Plan.
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Proposed Reporting
A final monitoring report would
include data collected during marine
mammal monitoring and acoustic and
environmental monitoring as described
above. The monitoring report would
include a narrative description of
project related activities, counts of
marine mammals by species, sex and
age class, a summary of marine mammal
species/count data, a summary of
marine mammal responses to projectrelated disturbance, and responses to
other types of disturbances. The
monitoring report would also include a
discussion of seasonal and daily
variations in the abundance of marine
mammals at Children’s Pool, the relative
percentage of marine mammals
observed to react to construction
activities and their observed reactions,
and the number of marine mammals
taken as a result of the project based on
the criteria shown in Table 4.
A draft report would be submitted to
NMFS within 60 calendar days of the
completion of acoustic measurements
and marine mammal monitoring. The
results would be summarized in tabular/
graphical forms and include
descriptions of acoustic sound levels
and marine mammal observations
according to type of construction
activity and equipment. A final report
would be prepared and submitted to
NMFS within 30 days following receipt
of comments on the draft report from
NMFS. Proposed reporting measures are
described in greater detail in Section 6
of the City’s Monitoring Plan.
If issued, this would be the first IHA
issued for the planned activity.
Monitoring reports from IHAs issued to
the City in 2013, 2014, and 2015 for the
lifeguard station construction project at
Children’s Pool reported that pinniped
responses to that project ranged from no
response to heads-up alerts, from startle
responses to some movements on land,
and some movements into the water
(Hanan & Associates 2014; 2015; 2016).
There were no documented occurrences
of Level A takes throughout the three
years of monitoring (Hanan & Associates
2014; 2015; 2016). Data from the three
years of monitoring indicates no site
abandonment by harbor seals a result of
the project (Hanan & Associates 2014;
2015; 2016). Monitoring reports from
previous IHAs issued to the City for
lifeguard tower construction at
Children’s Pool can be found on our
Web site at: www.nmfs.noaa.gov/pr/
permits/incidental/construction.htm.
The monitoring report from the previous
IHA issued to the City for a sand quality
study at Children’s Pool can be found
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on our Web site at: www.nmfs.noaa.gov/
pr/permits/incidental/research.htm.
Negligible Impact Analysis and
Determination
NMFS has defined negligible impact
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
(50 CFR 216.103). A negligible impact
finding is based on the lack of likely
adverse effects on annual rates of
recruitment or survival (i.e., populationlevel effects).
An estimate of the number of 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 harassment,
NMFS considers 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
effects on habitat, and the likely
effectiveness of the mitigation. We also
assess the number, intensity, and
context of estimated takes by evaluating
this information relative to population
status. Consistent with the 1989
preamble for NMFS’s implementing
regulations (54 FR 40338; September 29,
1989), the impacts from other past and
ongoing anthropogenic activities are
incorporated into this analysis via their
impacts on the environmental baseline
(e.g., as reflected in the regulatory status
of the species, population size and
growth rate where known, ongoing
sources of human-caused mortality, or
ambient noise levels).
If a marine mammal responds to a
stimulus by changing its behavior (e.g.,
through relatively minor changes in
locomotion direction/speed or
vocalization behavior), the response
may or may not constitute taking at the
individual level, and is unlikely to
affect the stock or the species as a
whole. However, if a sound source
displaces marine mammals from an
important feeding or breeding area for a
prolonged period, impacts on animals or
on the stock or species could potentially
be significant (e.g., Lusseau and Bejder
2007; Weilgart 2007).
Although the City’s planned activities
may disturb pinnipeds hauled out at
Children’s Pool, any project-related
impacts are expected to occur to a small,
localized group of marine mammals, in
relation to the overall stocks of marine
mammals considered here. Pinnipeds
would likely become alert or, at most,
flush into the water in response to
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19233
sounds from the planned project.
Disturbance is not expected to occur
during particularly sensitive times for
any marine mammal species, as
mitigation measures have been
specifically designed to avoid projectrelated activity during harbor seal
pupping season to eliminate the
possibility for pup injury or mother-pup
separation. No injury, serious injury, or
mortality is anticipated, nor is the
proposed action likely to result in longterm impacts such as permanent
abandonment of the haulout (Hanan &
Associates 2016).
Children’s Pool is not known as an
important feeding area for harbor seals,
but does serve as a harbor seal rookery.
Therefore, if displacement of seals or
adverse effects to pups were an
expected outcome of the planned
activity, impacts to the stock could
potentially result. However, site
abandonment is not expected to occur
as a result of the planned project. We
base this expectation on results of
previous monitoring reports from the
three consecutive IHAs issued to the
City for construction and demolition of
the lifeguard station at Children’s Pool.
Over three-plus years of consecutive
monitoring (2013–2016) there was no
site abandonment by harbor seals a
result of the project (Hanan & Associates
2014; 2015; 2016). Adverse effects to
pups are not expected to occur. The
moratorium on project-related activity
during the harbor seal pupping season
(December 15–May 15) is expected to
minimize any potential adverse effects
to pups such as mother-pup separation.
Takes of harbor seal as a result of the
project are expected to be low relative
to stock size (approximately five
percent). Additionally, as there are an
estimated 600 harbor seals using
Children’s Pool beach during a year
(Linder 2011), proposed authorized
takes of harbor seals (Table 5) are
expected to be repeated incidences of
take to a smaller number of individuals,
and not individuals taken, as described
above. These takes are not expected to
interfere with breeding, sheltering or
feeding. For the reasons stated above,
we do not expect the planned project to
affect annual rates of recruitment or
survival for harbor seals.
Children’s Pool does not represent an
important feeding or breeding area for
either northern elephant seals or
California sea lion, and neither species
uses the project location as a pupping
site. Takes of both species are expected
to be very low relative to the stock sizes
(less than one percent of the stock for
each species) and no take by Level A
harassment is anticipated to occur as a
result of the project for either northern
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elephant seals or California sea lions.
Takes that occur are expected to be in
the form of behavioral harassment,
specifically changes in direction or
possibly flushing to the water. These
takes are not expected to interfere with
breeding, sheltering or feeding. For the
reasons stated above, we do not expect
the planned project to affect annual
rates of recruitment or survival for
northern elephant seals or California sea
lions.
In summary and as described above,
the following factors primarily support
our preliminary determination that the
impacts resulting from this activity are
not expected to adversely affect the
species or stock through effects on
annual rates of recruitment or survival:
• No mortality is anticipated or
authorized.
• No injury is expected. Over the
course of 3,376 hourly counts associated
with monitoring for IHAs issued to the
City for construction and demolition of
the lifeguard station at Children’s Pool
in 2013–14, 2014–15, and 2015–16, no
takes by Level A harassment were
documented. As the planned project
would entail equipment with similar
expected sound levels to those that
occurred during the lifeguard station
project at Children’s Pool, but would
occur further from the haulout location
than the lifeguard station project, we do
not expect take by Level A harassment
to occur as a result of the planned
project.
• Behavioral disturbance—Takes are
expected to be in the form of behavioral
disturbance only. Based on the sound
levels anticipated and based on the
monitoring reports from previous IHAs
issued for similar activities at the same
location, behavioral responses are
expected to range from no response to
alerts, to movements or changes in
direction, to possible movements into
the water (flushes). Planned mitigation
described above is expected to limit the
number and/or severity of behavioral
responses, and those that occur are not
expected to be severe.
• Important Areas—As described
above, there are no important feeding,
breeding or pupping areas that would be
affected by the planned project for
northern elephant seals and California
sea lions. For harbor seal, Children’s
Pool represents a pupping location.
However, as described above, mitigation
measures including the moratorium
during pupping season (December 15 to
May 15) are expected to avoid any
potential impacts to pups, such as
mother-pup separation. Data from the
three years of monitoring suggests that
despite documented instances of
harassment resulting from the lifeguard
station project, there was no site
abandonment a result of the project
(Hanan & Associates 2014; 2015; 2016).
Therefore, the planned project is not
expected to negatively affect pups of
any species, and is not expected to
result in any impacts to annual rates of
recruitment or survival.
• Species/Stock scale—As described
above, the planned project would
impact only a very small percentage of
the stocks (approximately five percent
for harbor seal, less than one percent for
northern elephant seal and California
sea lion) and would only impact all
marine mammal stocks over a very
small portion of their ranges.
• Species/stock status—No marine
mammal species for which take
authorization is proposed are listed as
threatened or endangered under the
ESA and no mammal stocks for which
take authorization is proposed are
determined to be strategic or depleted
under the MMPA.
Based on the analysis contained
herein of the likely effects of the
specified activity on marine mammals
and their habitat, and taking into
consideration the implementation of the
proposed monitoring and mitigation
measures, NMFS preliminarily finds
that the total marine mammal take from
the proposed activity will have a
negligible impact on all affected marine
mammal species or stocks.
Small Numbers
As noted above, only small numbers
of incidental take may be authorized
under Section 101(a)(5)(D) of the MMPA
for specified activities other than
military readiness activities. The MMPA
does not define small numbers and so,
in practice, NMFS compares the number
of individuals taken to the most
appropriate estimation of abundance of
the relevant species or stock in our
determination of whether an
authorization is limited to small
numbers of marine mammals.
The numbers of marine mammals
authorized to be taken for harbor seal,
California sea lion, and northern
elephant seal, would be considered
small relative to the relevant stocks or
populations (approximately five percent
for harbor seal and less than one percent
for northern elephant seal and
California sea lion) even if each
estimated take occurred to a new
individual. However we believe it is
extremely unlikely that each estimated
take would occur to a new individual,
and more likely that multiple takes
would accrue to the same individuals.
As described above, 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 this can result in a
take estimate that overestimates the
number of individuals harassed. In
particular, for stationary activities, such
as the proposed project, 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.
This is especially true for those
individuals display some degree of
residency or site fidelity and the
impetus to use the site is stronger than
the deterrence presented by the
harassing activity, as is the case with
harbor seals that use Children’s Pool as
a haulout.
For the reasons described above, we
expect that there will almost certainly
be some overlap in individuals present
day-to-day at the project site, and the
proposed total numbers of authorized
takes are expected to occur only within
a small portion of the overall regional
stocks. Thus while we propose to
authorize the instances of incidental
take shown in Table 6, we believe that
the number of individual marine
mammals that would be incidentally
taken by the proposed project would be
substantially lower than these numbers.
mstockstill on DSK30JT082PROD with NOTICES
TABLE 6—ESTIMATED NUMBERS OF TAKE AND PERCENTAGES OF MARINE MAMMAL STOCKS THAT MAY BE TAKEN
Proposed
Level B take
authorized
Species
Harbor seal ..............................................................................................................................................
California sea lion ....................................................................................................................................
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E:\FR\FM\26APN1.SGM
1,620
36
26APN1
Stock
abundance
estimate 1
30,968
296,750
Percentage
of stock or
population
(percent)
5
<1
19235
Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices
TABLE 6—ESTIMATED NUMBERS OF TAKE AND PERCENTAGES OF MARINE MAMMAL STOCKS THAT MAY BE TAKEN—
Continued
Proposed
Level B take
authorized
Species
Northern elephant seal ............................................................................................................................
1 NMFS
179,000
Percentage
of stock or
population
(percent)
<1
2015 marine mammal stock assessment reports (Carretta et al., 2016) available online at: www.nmfs.noaa.gov/pr/sars/.
Based on the analysis contained
herein of the proposed activity
(including the proposed mitigation and
monitoring measures) and the
anticipated take of marine mammals,
NMFS preliminarily finds that small
numbers of marine mammals will be
taken relative to the population size of
the affected species or stocks.
Unmitigable Adverse Impact Analysis
and Determination
There are no relevant subsistence uses
of the affected marine mammal stocks or
species implicated by this action.
Therefore, NMFS has 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)
Section 7(a)(2) of the Endangered
Species Act of 1973 (ESA: 16 U.S.C.
1531 et seq.) requires that each Federal
agency insure that any action it
authorizes, funds, or carries out is not
likely to jeopardize the continued
existence of any endangered or
threatened species or result in the
destruction or adverse modification of
designated critical habitat. To ensure
ESA compliance for the issuance of
IHAs, NMFS consults internally with
our ESA Interagency Cooperation
Division whenever we propose to
authorize take for endangered or
threatened species.
No incidental take of ESA-listed
species is proposed for authorization or
expected to result from this activity.
Therefore, NMFS has determined that
formal consultation under section 7 of
the ESA is not required for this action.
Proposed Authorization
mstockstill on DSK30JT082PROD with NOTICES
14
Stock
abundance
estimate 1
As a result of these preliminary
determinations, NMFS proposes to issue
an IHA to the City of San Diego for
conducting demolition and construction
at Coast Boulevard, La Jolla, California,
from June 1, 2017 through December 14,
2017, provided the previously
mentioned mitigation, monitoring, and
reporting requirements are incorporated.
This section contains a draft of the IHA
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18:43 Apr 25, 2017
Jkt 241001
itself. The wording contained in this
section is proposed for inclusion in the
IHA (if issued).
1. This Incidental Harassment
Authorization (IHA) is valid from June
1, 2017 through December 14, 2017.
This IHA is valid only for demolition
and construction activities associated
with the public parking lot, sidewalk,
and landscaping improvement project at
Coast Boulevard in La Jolla, California.
2. General Conditions
(a) A copy of this IHA must be in the
possession of the City, its designees, and
work crew personnel operating under
the authority of this IHA.
(b) The species authorized for taking
are the Pacific harbor seal (Phoca
vitulina), California sea lion (Zalophus
californianus), and northern elephant
seal (Mirounga angustirostris).
(c) The taking, by Level B harassment
only, is limited to the species listed in
condition 2(b).
(d) The take by injury (Level A
harassment), serious injury, or death, or
the taking of any other species of marine
mammal not listed in condition 2(b), is
prohibited and may result in the
modification, suspension, or revocation
of this IHA.
(e) The City shall conduct briefings
between construction supervisors and
crews, marine mammal monitoring
team, and acoustical monitoring team
prior to the start of all demolition and
construction activities, and when new
personnel join the work, in order to
explain responsibilities, communication
procedures, marine mammal monitoring
protocol, and operational procedures.
3. Mitigation Measures
The holder of this Authorization is
required to implement the following
mitigation measures.
(a) Demolition and construction shall
be prohibited during the Pacific harbor
seal pupping season (December 15th to
May 15th) and for an additional two
weeks to accommodate lactation and
weaning of late season pups.
(b) Demolition and construction shall
be limited to daylight hours only (7:00
a.m. to 7:00 p.m., or 30 minutes before
sunset depending on time of year).
(c) Construction and demolition
activity involving use of very loud
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equipment (e.g., jackhammers) shall be
scheduled between the hours of 8:30
a.m. to 3:30 p.m., to the maximum
extent practical, but may be extended
from 7:00 a.m. to 7:00 p.m. (daylight
hours only).
(d) Monitoring shall be conducted by
a trained marine mammal observer
(MMO).
(i) The MMO shall have no other
construction-related tasks while
conducting monitoring and shall be
trained on species identification, how to
observe, and how to fill out the data
sheets prior to any construction or
demolition activities.
(ii) Monitoring shall take place from
30 minutes prior to initiation of
demolition or construction activity
through 30 minutes post-completion of
such activity.
(iii) The MMO shall have the
following minimum qualifications:
1. 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;
2. A minimum of a Bachelor’s degree
in biological science, wildlife
management, mammalogy, or related
field;
3. Experience and ability to conduct
field observations and collect data
according to assigned protocols (this
may include academic experience);
4. Experience or training in the field
identification of marine mammals, and
identification of marine mammal
behavior;
5. Sufficient training, orientation, or
experience with the construction
operation to provide for personal safety
during observations;
6. Writing skills sufficient to prepare
a report of observations; and
7. 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.
4. Monitoring
The holder of this Authorization is
required to implement the following
monitoring measures:
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26APN1
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Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices
(a) The City shall collect sighting data
and shall record observed behavioral
responses to project activities for marine
mammal species observed in the region
of activity during the period of activity;
(b) All visual marine mammal
information shall be recorded as
described in the Monitoring Plan
(Appendix C, Section 4 of the IHA
Application) and shall include the
following:
(i) Dates and times of marine mammal
observations;
(ii) Location of observations
(description);
(iii) Construction activities occurring
during each observation period
including any substantial change in
construction activities;
(iv) Human activity in the area;
(v) Counts by species of pinnipeds,
and if possible sex and age class;
(vi) Number and type of marine
mammal responses to disturbance; and
(vii) Apparent causes of marine
mammal responses (e.g., construction
project, aircraft, human activity, other
pinniped, other animal, swimmer/diver,
watercraft, or other with a description).
(c) In the event that a fur seal, is
observed on the rocks, beach, or in the
water prior to commencement of
activities, the MMO shall alert the
stranding network and all activities
shall be postponed until coordination
with the stranding network is complete
(including any potential 24-hour or 48hour wait/observation period) and/or
the animal either leaves, or is collected
by the stranding network.
(d) Acoustic recordings shall include
the following:
(i) One location (at minimum) will be
monitored close to the construction site
(near field) and adjacent to the edge of
the bluff overlooking Children’s Pool.
This will be a mobile station that will
move based on the actual location of
construction activities;
(ii) If the loudest construction
activities are more than 15 m (49 ft)
from the edge of the bluff, acoustic data
also will be recorded at an additional
near-field location closer to the
construction/demolition activities;
(iii) Three fixed monitoring stations
will be established parallel to the
guideline rope (far-field);
(iv) If SPLs of 90 dB rms or greater are
measured at any far-field monitoring
station, additional monitoring will be
conducted to determine the far-field
extent of the 90 dB isopleth, and 100 dB
isopleth, as applicable; and
(v) Acoustic monitor shall record time
of observations, environmental
conditions, and SPLs at applicable
monitoring stations 30 minutes prior to
the start of demolition/construction,
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18:43 Apr 25, 2017
Jkt 241001
every hour during demolition/
construction, and 30 minutes after
cessation of demolition/construction
activities.
(e) At the start of each new phase of
construction, a full day of acoustic
monitoring shall occur. The number of
days of monitoring required after the
first full day of monitoring for each new
construction phase shall depend on
results of acoustic monitoring, as
follows:
(i) If acoustic monitoring on the first
day of a new phase of construction
documents sound levels of 90 dB rms or
greater at any far-field location, daily
monitoring shall be required throughout
that phase of construction;
(ii) If acoustic monitoring on the first
day of a new phase of construction
documents sound levels of 90 dB rms or
greater at the near-field location, but not
at any far-field location, then a
minimum of two additional days of
monitoring shall be required to confirm
far-field sound levels remain less than
90 dB rms for construction phase
durations of less than 4 weeks. Acoustic
monitoring shall be conducted weekly
to confirm far-field sound levels remain
less than 90 dB rms for construction
phase durations of greater than 4 weeks.
If during the additional monitoring,
sound levels of 90 dB or greater are
recorded at any far-field location, then
daily monitoring shall be required until
the end of that construction phase; and
(iii) If Acoustic monitoring on the first
day of a new phase of construction
documents sound levels of less than 90
dB rms at the near-field location(s), then
one additional day of monitoring shall
be conducted to confirm near-field
sound levels remain less than 90 dB
rms. If a sound level of greater than 90
dB rms is measured at the near-field
location on the second day of
monitoring, additional days of
monitoring shall be conducted
consistent with the specification listed
under item 4(d)(ii).
5. Reporting
The holder of this Authorization is
required to:
(a) Submit a draft report on all
monitoring conducted under the IHA
within 90 calendar days of the
completion of marine mammal and
acoustic monitoring or sixty days prior
to the issuance of any subsequent IHA
for this project, whichever comes first;
(b) Submit a final report within 30
days following resolution of comments
on the draft report from NMFS. This
report must contain the informational
elements described in the Monitoring
Plan at minimum, and shall also
include:
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Fmt 4703
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(i) Results of the marine mammal
monitoring plan including the elements
described in 4(b); and
(ii) Results of acoustic monitoring as
described in the Monitoring Plan.
(c) Reporting injured or dead marine
mammals:
(i) In the unanticipated event that the
specified activity clearly causes the take
of a marine mammal in a manner
prohibited by this IHA, such as injury
or mortality, the City will immediately
cease the specified activities and report
the incident to the Office of Protected
Resources, NMFS, and the West Coast
Regional Stranding Coordinator, NMFS.
The report must include the following
information:
1. Time and date of the incident;
2. Description of the incident;
3. Environmental conditions (e.g.,
wind speed and direction, Beaufort sea
state, cloud cover, and visibility);
4. Description of all marine mammal
observations and active sound source
use in the 24 hours preceding the
incident;
5. Species identification or
description of the animal(s) involved;
6. Fate of the animal(s); and
7. Photographs or video footage of the
animal(s).
Activities shall not resume until
NMFS is able to review the
circumstances of the prohibited take.
NMFS will work with the City to
determine what measures are necessary
to minimize the likelihood of further
prohibited take and ensure MMPA
compliance. The City may not resume
their activities until notified by NMFS.
(ii) In the event that the City discovers
an injured or dead marine mammal, and
the MMO determines that the cause of
the injury or death is unknown and the
death is relatively recent (e.g., in less
than a moderate state of decomposition),
the City will immediately report the
incident to the Office of Protected
Resources, NMFS, and the West Coast
Regional Stranding Coordinator, NMFS.
The report must include the same
information identified in 5(c)(i) of this
IHA. Activities may continue while
NMFS reviews the circumstances of the
incident. NMFS will work with the City
to determine whether additional
mitigation measures or modifications to
the activities are appropriate.
(iii) In the event that the City
discovers an injured or dead marine
mammal, and the MMO determines that
the injury or death is not associated
with or related to the activities
authorized in the IHA (e.g., previously
wounded animal, carcass with moderate
to advanced decomposition, or
scavenger damage), the City will report
the incident to the Office of Protected
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Federal Register / Vol. 82, No. 79 / Wednesday, April 26, 2017 / Notices
Resources, NMFS, and the West Coast
Regional Stranding Coordinator, NMFS,
within 24 hours of the discovery. The
City will provide photographs or video
footage or other documentation of the
stranded animal sighting to NMFS.
This Authorization may be modified,
suspended or withdrawn if the holder
fails to abide by the conditions
prescribed herein, or if NMFS
determines the authorized taking is
having more than a negligible impact on
the species or stock of affected marine
mammals.
Request for Public Comments
We request comment on our analyses,
the draft authorization, and any other
aspect of this Notice of Proposed IHA
for the proposed demolition and
construction at Coast Boulevard, La
Jolla, California. Please include with
your comments any supporting data or
literature citations to help inform our
final decision on the request for MMPA
authorization.
Dated: April 18, 2017.
Donna S. Wieting,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2017–08402 Filed 4–25–17; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
Patent and Trademark Office
mstockstill on DSK30JT082PROD with NOTICES
Submission for OMB Review;
Comment Request; Initial Patent
Applications
The United States Patent and
Trademark Office (USPTO) will submit
to the Office of Management and Budget
(OMB) for clearance the following
proposal for collection of information
under the provisions of the Paperwork
Reduction Act (44 U.S.C. Chapter 35).
Agency: United States Patent and
Trademark Office, Department of
Commerce.
Title: Initial Patent Applications.
OMB Control Number: 0651–0032.
Form Number(s): PTO/SB/01, PTO/
SB/01A, PTO/SB/02, PTO/SB/02A,
PTO/SB/02B, PTO/SB/02CN, PTO/SB/
02DE, PTO/SB/02ES, PTO/SB/02FR,
PTO/SB/02IT, PTO/SB/02JP, PTO/SB/
02KR, PTO/SB/02LR, PTO/SB/02NL,
PTO/SB/02RU, PTO/SB/02SE, PTO/SB/
03, PTO/SB/03A, PTO/SB/04, PTO/SB/
06, PTO/SB/07, PTO/SB/14 EFS-Web,
PTO/SB/16, PTO/SB/16 EFS-Web, PTO/
SB/17, PTO/SB/29, PTO/SB/29A, PTO/
SB/101, PTO/SB/102, PTO/SB/103,
PTO/SB/104, PTO/SB/105, PTO/SB/
106, PTO/SB/107, PTO/SB/108, PTO/
SB/109, PTO/SB/110, PTO/AIA/01,
VerDate Sep<11>2014
18:43 Apr 25, 2017
Jkt 241001
PTO/AIA/02, PTO/AIA/03, PTO/AIA/
04, PTO/AIA/08, PTO/AIA/09, PTO/
AIA/10, PTO/AIA/11, PTO/AIA/14,
PTO/AIA/15, PTO/AIA/18, PTO/AIA/
19, PTO/AIA/01CN, PTO/AIA/01DE,
PTO/AIA/01ES, PTO/AIA/01FR, PTO/
AIA/01IT, PTO/AIA/01JP, PTO/AIA/
01KR, PTO/AIA/01NL, PTO/AIA/01RU,
PTO/AIA/01SE, PTO/AIA/02CN, PTO/
AIA/02DE, PTO/AIA/02ES, PTO/AIA/
02FR, PTO/AIA/02IT, PTO/AIA/02JP,
PTO/AIA/02KR, PTO/AIA/02NL, PTO/
AIA/02RU, and PTO/AIA/02SE.
Type of Request: Regular.
Number of Respondents: 636,003.
Average Hours per Respondent: The
USPTO estimate that it takes the public
approximately between 30 minutes
(0.50 hours) to 40 hours to complete this
information, depending on the
complexity of the request. This includes
the time to gather the necessary
information, prepare the application,
petition, or paper submissions, and
submit the completed request to the
USPTO.
Burden Hours: 15,757,081.50 hours.
Cost Burden: $1,127,541,338.53.
Needs and Uses: This collection of
information is required by, inter alia, 35
U.S.C. 131 and 37 CFR 1.16 through
1.84 and 1.495(b). Each patent
application must provide sufficient
information to allow the USPTO to
examine properly the application,
petition, or paper to determine whether
the application, petition, or paper meets
the criteria set forth in the patent
statutes and regulations. The various fee
and application transmittal forms, the
declarations, the cover sheets, the
petitions, and the papers filed under 37
CFR 1.41(c), 1.41(a)(2) (pre-AIA),
1.48(d), 1.53(c)(2), and 1.53(c)(2) (prePLT (AIA)) permit applicants to supply
all of the information necessary to
process the application and enables the
USPTO to ensure that all of the
information has been provided in order
to process the application.
Frequency: On occasion.
Affected Public: Individuals or
households; businesses or other forprofits; non-profit institutions; and the
Federal Government.
Respondent’s Obligation: Required to
Obtain or Retain Benefits.
OMB Desk Officer: Nicholas A.
Fraiser, email:
Nicholas_A._Fraiser@omb.eop.gov.
Once submitted, the request will be
publicly available in electronic format
through reginfo.gov. Follow the
instructions to view Department of
Commerce collections currently under
review by OMB.
Further information can be obtained
by:
PO 00000
Frm 00041
Fmt 4703
Sfmt 4703
19237
• Email:
InformationCollection@upsto.gov.
Include ‘‘0651–0032 copy request’’ in
the subject line of the message.
• Mail: Marcie Lovett, Records and
Information Governance Division
Director, Office of the Chief Technology
Officer, United States Patent and
Trademark Office, P.O. Box 1450,
Alexandria, VA 22313–1450.
Written comments and
recommendations for the proposed
information collection should be sent on
or before May 26, 2017 to Nicholas A.
Fraser, OMB Desk Officer, via email to
Nicholas_A._Fraser@omb.eop.gov, or by
fax to 202–395–5167, marked to the
attention of Nicholas A. Fraser.
Marcie Lovett,
Records and Information Governance
Division Director, OCTO, United States Patent
and Trademark Office.
[FR Doc. 2017–08419 Filed 4–25–17; 8:45 am]
BILLING CODE 3510–16–P
DEPARTMENT OF COMMERCE
Patent and Trademark Office
Submission for OMB Review;
Comment Request; Patent Trial Appeal
Board (PTAB) Actions
The United States Patent and
Trademark Office (USTPO) will submit
to the Office of Management and Budget
(OMB) for clearance the following
proposal for collection of information
under the provisions of the Paperwork
Reduction Act (44 U.S.C. Chapter 35).
Agency: United States Patent and
Trademark Office, Commerce.
Title: Patent Trial Appeal Board
(PTAB) Actions.
OMB Control Number: 0651–0063.
Form Number(s): None.
Type of Request: Revision of a
currently existing collection.
Number of Respondents: 23,660.
Average Hours per Response: Between
2 and 32 hours, depending upon the
instrument used.
Burden Hours: 555,098 hours.
Cost Burden: $46,049,937.65.
Needs and Uses: The Patent Trial and
Appeal Board (PTAB or Board) is
established by statute under 35 U.S.C. 6.
This statute directs that PTAB ‘‘shall on
written appeal of an applicant, review
adverse decisions of examiners upon
applications for patent and shall
determine priority and patentability of
invention in interferences.’’ PTAB has
the authority, under pre-AIA sections of
the Patent Act, i.e., 35 U.S.C. 134, 135,
306, and 315, to decide ex parte and
inter partes appeals and interferences.
The membership of the Board is
E:\FR\FM\26APN1.SGM
26APN1
]]>Agencies
[Federal Register Volume 82, Number 79 (Wednesday, April 26, 2017)]
[Notices]
[Pages 19221-19237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08402]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XF319
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Coast Boulevard Improvements
Project, La Jolla, California
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed incidental harassment authorization (IHA); request for
comments.
-----------------------------------------------------------------------
SUMMARY: NMFS has received a request from the City of San Diego for
authorization to take marine mammals incidental to Coast Boulevard
improvements in La Jolla, California. Pursuant to the Marine Mammal
Protection Act (MMPA), NMFS is requesting comments on its proposal to
issue an IHA to incidentally take marine mammals during the specified
activities.
DATES: Comments and information must be received no later than May 26,
2017.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service. Physical comments should be sent to
1315 East-West Highway, Silver Spring, MD 20910 and electronic comments
should be sent to ITP.Carduner@noaa.gov.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments received electronically, including
all attachments, must not exceed a 25-megabyte file size. Attachments
to electronic comments will be accepted in Microsoft Word or Excel or
Adobe PDF file formats only. All comments received are a part of the
public record and will generally be posted online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm without change. All personal
identifying information (e.g., name, address) voluntarily submitted by
the commenter may be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.
FOR FURTHER INFORMATION CONTACT: Jordan Carduner, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the 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.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct the Secretary of Commerce 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.
An 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
[[Page 19222]]
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.
The MMPA states that the term ``take'' means to harass, hunt,
capture, kill or attempt to harass, hunt, capture, or kill any marine
mammal.
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).
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action with respect to environmental
consequences on the human environment.
Accordingly, NMFS has preliminarily determined that the issuance of
the proposed IHA qualifies to be categorically excluded from further
NEPA review. This action is consistent with categories of activities
identified in CE B4 of the Companion Manual for NOAA Administrative
Order 216-6A, which do not individually or cumulatively have the
potential for significant impacts on the quality of the human
environment and for which we have not identified any extraordinary
circumstances that would preclude this categorical exclusion.
We will review all comments submitted in response to this notice
prior to concluding our NEPA process in making a final decision on the
IHA request.
Summary of Request
NMFS received a request from the City of San Diego (City) for an
IHA to take marine mammals incidental to Coast Boulevard improvements
in La Jolla, California. The City's request was for harassment only and
NMFS concurs that mortality is not expected to result from this
activity. Therefore, an IHA is appropriate.
The City's application for incidental take authorization was
received on December 16, 2016. On March 1, 2017, we deemed the City's
application for authorization to be adequate and complete. The planned
activity is not expected to exceed one year, hence we do not expect
subsequent MMPA incidental harassment authorizations would be issued
for this particular activity.
The planned activities include improvements to an existing public
parking lot, sidewalk, and landscaping areas located on the bluff tops
above Children's Pool, a public beach located in La Jolla, California.
Species that are expected to be taken by the planned activity include
harbor seal, California sea lion, and northern elephant seal. Take by
Level B harassment only is expected; no injury or mortality of marine
mammals is expected to result from the proposed activity. This would be
the first IHA issued for this activity, if issued. The City applied
for, and was granted, IHAs in 2013 2014 and 2015 (NMFS 2013; 2014;
2015) for a lifeguard station demolition and construction project at
Children's Pool beach. NMFS published notices in the Federal Register
announcing the issuance of these IHAs on July 8, 2013 (78 FR 40705),
June 6, 2014 (79 FR 32699), and July 13, 2015 (80 FR 39999),
respectively. The City also applied for, and was granted, an IHA in
2016 (NMFS 2016) for a sand sampling project at Children's Pool beach.
NMFS published a notice in the Federal Register announcing the issuance
of the IHA on June 3, 2016 (81FR 35739).
Description of Proposed Activity
Overview
The City of San Diego plans to conduct improvements to an existing
public parking lot, sidewalk, and landscaping areas located on the
bluff tops above Children's Pool to upgrade public access and safety.
Demolition activities would include the removal of existing parking lot
paving; concrete curb, gutter, and sidewalk; and the removal of
existing irrigation and plant materials. Construction activities would
include subgrade preparation, asphalt paving, and marking of parking
stalls; pouring of concrete curb, gutter, and sidewalk; construction of
rock walls, installation of fencing, placement of landscape boulders,
installation of landscaping and irrigation; and finishing and clean up.
The City has requested an IHA for incidental take, via Level B
harassment only, of harbor seals that routinely haul out on the beach
below the project, as well as California sea lions and northern
elephant seals that occasionally haul out on the beach.
The City has determined that noise from demolition and construction
associated with the planned project has the potential to result in
behavioral harassment of pinnipeds on Children's Pool. No injury or
mortality of marine mammals is expected as a result of the planned
activities. The expectation that behavioral harassment of pinnipeds
would result from the planned activities is based on monitoring reports
from the recent demolition and construction of the Children's Pool
lifeguard station project, for which the City was issued Incidental
Harassment Authorizations in 2013, 2014 and 2015 (Hanan & Associates
2016).
Dates and Duration
The planned project would occur from June 1, 2017 through December
14, 2017. Activities would occur Monday through Saturday only, and no
work would be planned on all applicable California and Federal
holidays. There would be a total of 164 available days during which
project activities could occur. No construction would occur during the
Seal Pupping Season Moratorium (December 15 to May 15) and for an
additional two weeks to accommodate lactation and weaning of late
season pups. Thus construction would not occur from December 15th to
May 29th. The IHA, if issued, would be valid from June 1, 2017 through
December 14, 2017.
Specified Geographic Region
The location of the project would be La Jolla, California. All
planned project related activities would occur atop the 20 to 40-foot
bluffs above Children's Pool beach, adjacent to the Children's Pool
Lifeguard Station located at 827\1/2\ Coast Boulevard, La Jolla,
California (See Figure 1 of the City's IHA application).
Detailed Description of Specific Activities
Children's Pool beach was created in 1932 by building a breakwater
wall that allowed for a protected pool for swimming. Since then, the
pool has partially filled with sand and the beach has widened to
approximately 50 meter (m) (164 feet (ft)) at low tide. The planned
project would include improvements to an existing public parking lot,
sidewalk, and landscaping areas located on top of a coastal bluff above
Children's Pool beach. Components of the project include the demolition
and construction of an asphalt parking lot; concrete curb, gutter, and
sidewalk; placement of
[[Page 19223]]
landscape boulders; and the delivery and hauling away of materials.
These components of the project would require the use of a variety of
heavy equipment, machinery, and trucks, such as concrete breaker,
jackhammer, backhoe, bobcat, dump trucks, cement/pump truck, paver, and
roller. See Table 1 for a description of the various project components
and potential associated sound source levels (see ``Potential Effects
of Specified Activities on Marine Mammals and their Habitat'' later in
this document for a discussion of potential effects of acoustic sources
on marine mammals).
Table 1--Activities Planned During the Proposed Project and Estimated Duration and Maximum Sound Levels
----------------------------------------------------------------------------------------------------------------
Maximum sound
level from
activities, Estimated dates
Task Related activities Equipment required estimated at and duration
1m (dB re 20 (weeks)
[mu]Pa) \1\
----------------------------------------------------------------------------------------------------------------
Mobilization & temporary Install: temporary truck, backhoe, 100 June 1-June 30 (4
facilities. perimeter fencing, trailer, small weeks)
temporary utilities, auger, hand/power
temporary office tools.
trailer (if needed),
temporary sanitary
facilities.
Demolition & site clearing..... Remove hardscape excavator, 110 July 3-July 14 (2
(planters, curb and hydraulic ram, weeks)
sidewalk) and jackhammer,
landscaping, debris to trucks, hand/
be hauled via Coast power tools.
Boulevard.
Site preparation & utilities... Rough grade site, loader, backhoe, 110 July 17-August 11
modify underground truck. (4 weeks)
utilities if necessary.
Site improvements.............. Construct concrete backhoe, truck, 110 August 14-November
walls, curbs, and hand/power tools, 3 (12 weeks)
planters, fine grade, concrete pump/
irrigation, hardscape, truck, fork lift.
landscape, hand rail.
Final inspection, Remove construction truck, hand/power 100 November 6-
demobilization. equipment, inspection, tools. December 1 (4
make corrections. weeks)
----------------------------------------------------------------------------------------------------------------
\1\ Tierra Data 2016
The equipment planned for use during the proposed project is very
similar to that used during the demolition and construction of the
Children's Pool lifeguard station project. Based on monitoring reports
associated with IHAs issued for the demolition and construction of the
Children's Pool lifeguard station project, equipment used for that
project caused sound levels that resulted harassment (Level B) of
pinnipeds at Children's Pool beach. The highest sound levels estimated
during construction of the Children's Pool lifeguard station were 100
to 110 decibels (dB) root mean squared (rms). Results of acoustic
monitoring during the lifeguard station project showed peak values of
91 to 103 dB rms within 15 to 20 m (49 to 66 ft) of construction
activities (Hanan & Associates 2016).
Children's Pool is designated as a shared-use beach. The beach and
surrounding waters are used for swimming, surfing, kayaking, diving,
tide pooling, and nature watching. Harbor seals, in particular, draw
many visitors. During the harbor seal pupping season (December 15
through May 15), the beach is closed to the public. Outside of the
pupping season, beach access and recreational uses are permitted by the
City, provided that there is no direct harassment of harbor seals. A
guideline rope strung along the upper part of the beach, as well as
signage, encourage the public to respect the seals in the area and view
them at a safe distance. Studies indicate that harbor seals are
habituated to human presence at Children's Pool (Tierra Data 2015);
however, habituation or reaction to human activity depends on the
individual seal and the circumstances.
Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (please see ``Proposed
Mitigation'' and ``Proposed Monitoring and Reporting'').
Description of Marine Mammals in the Area of Specified Activities
Three species are considered to co-occur with the City's planned
activities: Harbor seals (Phoca vitulina), which are by far the
dominant observed marine mammal in the project area, as well as
California sea lions (Zalophus californianus) and northern elephant
seals (Mirounga angustirostris) which also occasionally haul out in the
project area, in far lower numbers. This section provides summary
information regarding local occurrence of these species. We have
reviewed the City's detailed species descriptions, including life
history information, for accuracy and completeness and refer the reader
to Sections 3 and 4 of the City's IHA application, as well as to NMFS's
Stock Assessment Reports (SAR; www.nmfs.noaa.gov/pr/sars/), instead of
reprinting all of the information here. Additional general information
about these species (e.g., physical and behavioral descriptions) may be
found on NMFS's Web site (www.nmfs.noaa.gov/pr/species/mammals/).
Northern fur seals (Callorhinus ursinus) and Guadalupe fur seals
(Arctocephalus townsendi) have been observed at beaches near the
project location on rare occasions, and a northern fur seal was
recently observed hauled out at La Jolla Cove, less than a mile from
Children's Pool beach (pers comm D. Hanan, Hanan & Associates, to D.
Youngkin, NMFS, Feb 4, 2016). Beginning in January 2015, elevated
strandings of Guadalupe fur seal pups and juveniles were observed in
California. The Working Group on Marine Mammal Unusual Mortality Events
determined that the ongoing stranding event meets the criteria for an
Unusual Mortality event (UME) and declared strandings of Guadalupe fur
seals from 2015 through 2017 to be one continuous UME. The causes and
mechanisms of this UME remain under investigation. Fur seals do not
generally to haul out in urban mainland beaches such as Children's
Pool, and their presence would likely be attributed to sickness or
injury if they were observed in the project location. Therefore, their
occurrence at Children's Pool would be considered extralimital and
would not be expected. Thus these species are not considered further in
this proposed
[[Page 19224]]
IHA. The planned activities would not be conducted if marine mammal
species other than those proposed for authorization in this document
were present on Children's Pool.
Table 2 lists all species with expected potential for occurrence in
the project location and summarizes information related to the
population or stock, including PBR, where known. For taxonomy, we
follow Committee on Taxonomy (2016). For status of species, we provide
information regarding U.S. regulatory status under the MMPA and ESA.
Abundance estimates presented here represent the total number of
individuals that make up a given stock or the total number estimated
within a particular study area. NMFS's stock abundance estimates for
most species represent the total estimate of individuals within the
geographic area, if known, that comprises that stock. For some species,
this geographic area may extend beyond U.S. waters. PBR, 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, is considered in concert with known sources of ongoing
anthropogenic mortality to assess the population-level effects of the
anticipated mortality from a specific project (as described in NMFS's
SARs). While no mortality is anticipated or authorized here, PBR and
annual serious injury and mortality are included here as gross
indicators of the status of the species and other threats.
All values presented in Table 2 are the most recent available at
the time of publication and are available in NMFS's SARs (e.g.,
Carretta et al., 2016). Please see the SARs, available at
www.nmfs.noaa.gov/pr/sars, for more detailed accounts of these stocks'
status and abundance.
Table 2--Marine Mammal Species Potentially Present in the Project Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stock abundance (CV, Relative occurrence
ESA/MMPA status; Nmin, most recent Annual M/SI in project area;
Species Stock Strategic (Y/N) \1\ abundance survey) \2\ PBR \3\ \4\ season of
occurrence
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion............... U.S.................. -; N................. 296,750 (n/a; 9,200 389 Abundant; year-round
153,337; 2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal....................... California........... -; N................. 30,968 (n/a; 27,348; 1,641 43 Rare; year-round
2012).
Northern elephant seal............ California breeding.. -; N................. 179,000 (n/a; 81,368; 4,882 8.8 Rare; year-round
2010).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 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\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
stock abundance. In some cases, CV is not applicable.
\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's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike).
Harbor Seals
Harbor seals inhabit coastal and estuarine waters and shoreline
areas of the northern hemisphere from temperate to polar regions. The
eastern North Pacific subspecies is found from Baja California north to
the Aleutian Islands and into the Bering Sea. Multiple lines of
evidence support the existence of geographic structure among harbor
seal populations from California to Alaska (Carretta et al., 2016).
However, because stock boundaries are difficult to meaningfully draw
from a biological perspective, three separate harbor seal stocks are
recognized for management purposes along the west coast of the
continental U.S.: (1) Washington inland waters (2) Oregon and
Washington coast, and (3) California (Carretta et al., 2016). Placement
of a stock boundary at the California-Oregon border is not based on
biology but is considered a political and jurisdictional convenience
(Carretta et al., 2016). In addition, harbor seals may occur in Mexican
waters, but these animals are not considered part of the California
stock. Only the California stock is expected to be found in the project
area.
Harbor seals are not protected under the Endangered Species Act
(ESA); the California stock is not listed as depleted under the MMPA,
and is not considered a strategic stock under the MMPA because annual
human-caused mortality (43) is significantly less than the calculated
potential biological removal (PBR; 1,641) (Carretta et al., 2016). The
population appears to be stabilizing at what may be its carrying
capacity and fishery mortality is declining. The best abundance
estimate of the California stock of harbor seals is 30,968 and the
minimum population size of this stock is 27,348 individuals (Carretta
et al., 2016).
The beaches and rocks at, or near, the Children's Pool are known
haul out sites for harbor seals. Starting in the mid-1990s there was an
increase in numbers of harbor seals using the beaches and rocks in the
area around Children's Pool (Yochem and Stewart 1998). As a result, the
City commissioned several studies for harbor seal abundance trends at
this site (Yochem and Stewart 1998; Hanan & Associates 2004, 2011).
Abundances at any given time may range from a low of 0 to 15 seals to a
maximum that rarely exceeds 200 seals at Children's Pool, and 250
individuals in the vicinity (Linder 2011; Hanan & Associates 2014).
When abundances are low, seals tend to cluster on the western side
of Children's Pool, and when abundances are high, the seals spread out
along the beach. A limiting factor to the maximum number of individuals
observed at Children's Pool at any given time likely relates to the
area available for haulouts (Linder 2011). Several factors influence
the variability in harbor seal abundance, including daily foraging and
resting patterns, season, weather conditions, and movements by
transient individuals. Generally, the highest abundances occur during
the months of April and May, at the end of the
[[Page 19225]]
pupping season and beginning of the molting season (Linder 2011).
Radio tagging and photographic studies have identified that only a
portion of seals utilizing a haulout site are present at any specific
moment or day (Hanan 1996, 2005; Gilbert et.al. 2005; Harvey and Goley
2011; Linder 2011; Hanan & Associates 2014). These studies further
indicate that seals are constantly moving along the coast, including
to/from offshore islands (California Channel Islands, Las Islas
Coronados). Linder (2011) estimated that there may be as many as 600
harbor seals using Children's Pool beach during a year associated with
the coastal movements of transient individuals, and suggested that the
haul out at Children's Pool Beach is possibly part of a regional
network of interconnected resting and pupping sites.
California Sea Lion
California sea lions range from the Gulf of California north to the
Gulf of Alaska, with breeding areas located in the Gulf of California,
western Baja California, and southern California. Five genetically
distinct geographic populations have been identified: (1) Pacific
Temperate, (2) Pacific Subtropical, (3) Southern Gulf of California,
(4) Central Gulf of California and (5) Northern Gulf of California
(Schramm et al., 2009). Rookeries for the Pacific Temperate population
are found within U.S. waters and just south of the U.S.-Mexico border,
and animals belonging to this population may be found from the Gulf of
Alaska to Mexican waters off Baja California. Animals belonging to
other populations (e.g., Pacific Subtropical) may range into U.S.
waters during non-breeding periods. For management purposes, a stock of
California sea lions comprising those animals at rookeries within the
U.S. is defined (i.e., the U.S. stock of California sea lions)
(Carretta et al., 2016). Pup production at the Coronado Islands rookery
in Mexican waters is considered an insignificant contribution to the
overall size of the Pacific Temperate population (Lowry and Maravilla-
Chavez, 2005).
California sea lions are not protected under the ESA and the U.S.
stock of California sea lions is not listed as depleted under the MMPA.
Total annual human-caused mortality (389) is substantially less than
the PBR (estimated at 9,200 per year); therefore, California sea lions
are not considered a strategic stock under the MMPA. There are
indications that the California sea lion may have reached or is
approaching carrying capacity, although more data are needed to confirm
that leveling in growth persists (Carretta et al., 2016). The best
abundance estimate of the U.S. stock is 296,750 and the minimum
population size of this stock is 153,337 individuals (Carretta et al.,
2016).
Beginning in January 2013, elevated strandings of California sea
lion pups were observed in southern California, with live sea lion
strandings nearly three times higher than the historical average.
Findings to date indicate that a likely contributor to the large number
of stranded, malnourished pups was a change in the availability of sea
lion prey for nursing mothers, especially sardines. The Working Group
on Marine Mammal Unusual Mortality Events determined that the ongoing
stranding event meets the criteria for a UME and declared California
sea lion strandings from 2013 through 2016 to be one continuous UME.
The causes and mechanisms of this event remain under investigation
(www.nmfs.noaa.gov/pr/health/mmume/californiasealions2013.htm).
California sea lions have been observed in the water, or on the
beach or rocks at and near Children's Pool, though these areas are used
only occasionally as haulout locations for the species (Yochem and
Stewart 1998; Hanan & Associates 2004, 2011; Linder 2011). Monitoring
associated with the Children's Pool Lifeguard Station construction
project from June 28, 2015-June 27, 2016 documented a total of 71
California sea lions on Children's Pool beach, as well as 83 California
sea lions on seal rock (an outcropping approximately 91 m north of the
beach); five California sea lions on South Casa Beach; and one
California sea lion on the offshore reef off South Casa Beach (Hanan &
Associates 2016). Observers recorded data only during construction, so
it is possible there were more days throughout the year in which
California sea lions hauled out on the beach. Evaluation of Children's
Pool docent data from 2014 to 2016 (Seal Conservancy 2016), indicates
that California sea lions were observed on Children's Pool beach on 67
days in 2014, 14 days in 2015, and 95 days in 2016.
Northern Elephant Seals
Northern elephant seals gather at breeding areas, located primarily
on offshore islands of Baja California and California, from
approximately December to March before dispersing for feeding. Males
feed near the eastern Aleutian Islands and in the Gulf of Alaska, while
females feed at sea south of 45[deg] N (Stewart and Huber, 1993; Le
Boeuf et al., 1993). Adults then return to land between March and
August to molt, with males returning later than females, before
dispersing again to their respective feeding areas between molting and
the winter breeding season. Populations of northern elephant seals in
the U.S. and Mexico are derived from a few tens or hundreds of
individuals surviving in Mexico after being nearly hunted to extinction
(Stewart et al., 1994). Given the recent derivation of most rookeries,
no genetic differentiation would be expected. Although movement and
genetic exchange continues between rookeries, most elephant seals
return to their natal rookeries when they start breeding (Huber et al.,
1991). The California breeding population is now demographically
isolated from the Baja California population and is considered to be a
separate stock.
Northern elephant seals are not protected under the ESA and the
California breeding population is not listed as depleted under the
MMPA. Total annual human-caused mortality (8.8) is substantially less
than the PBR (estimated at 4,882 per year); therefore, northern
elephant seals are not considered a strategic stock under the MMPA.
Modeling of pup counts indicates that the population has reached its
Maximum Net Productivity Level, but has not yet reached carrying
capacity (Carretta et al., 2016). The best abundance estimate of the
California breeding population of northern elephant seals is 179,000
and the minimum population size of this stock is 81,368 individuals
(Carretta et al., 2016).
Northern elephant seals have been observed in the water, or on the
beach or rocks at and near Children's Pool, though these areas are used
only occasionally as haulout locations for the species (Yochem and
Stewart 1998; Hanan & Associates 2004, 2011; Linder 2011). During
monitoring associated with the Children's Pool Lifeguard Station
construction project, juvenile northern elephant seals were documented
on Children's Pool beach on a total of 26 days in the period from June
28, 2015-June 27, 2016 (Hanan & Associates 2016), and 28 days in the
period from June 28, 2014-June 27, 2015 (Hanan & Associates 2015).
Observers recorded data only during construction, so it is possible
there were more days throughout the year in which elephant seals hauled
out on the beach. Children's Pool docent data indicates that Northern
elephant seals used the beach as a haulout location on 38 days in 2014
and 36 days in 2015 (Seal Conservancy 2016).
[[Page 19226]]
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section includes a summary and discussion of the ways that
components of the specified activity may impact marine mammals and
their habitat. The ``Estimated Take by Incidental Harassment'' section
later in this document will include a quantitative analysis of the
number of individuals that are expected to be taken by this activity.
The ``Negligible Impact Analysis and Determination'' section will
consider the content of this section, the ``Estimated Take by
Incidental Harassment'' section, and the ``Proposed Mitigation''
section, to draw conclusions regarding the likely impacts of these
activities on the reproductive success or survivorship of individuals
and how those impacts on individuals are likely to impact marine mammal
species or stocks.
Description of Sound Sources
Acoustic sources associated with the City's proposed activities are
expected to include various types of construction and demolition
equipment, such as jackhammers, concrete saws, cement pumps, and hand
tools (Table 1). Sound sources may be pulsed or non-pulsed.
Pulsed sound sources (e.g., sonic booms, explosions, gunshots,
impact pile driving) produce signals that are brief (typically
considered to be less than one second), broadband, atonal transients
(ANSI 1986; Harris 1998; NIOSH 1998; ISO 2003; ANSI 2005) and occur
either as isolated events or repeated in some succession. Pulsed sounds
are all characterized by a relatively rapid rise from ambient pressure
to a maximal pressure value followed by a rapid decay period that may
include a period of diminishing, oscillating maximal and minimal
pressures, and generally have an increased capacity to induce physical
injury as compared with sounds that lack these features.
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or
prolonged, and may be either continuous or non-continuous (ANSI 1995;
NIOSH 1998). Some of these non-pulsed sounds can be transient signals
of short duration but without the essential properties of pulses (e.g.,
rapid rise time). Examples of non-pulsed sounds include those produced
by rocket launches and landings, vessels, aircraft, machinery
operations such as drilling or dredging, and vibratory pile driving.
The duration of such sounds, as received at a distance, can be greatly
extended in a highly reverberant environment.
Sound travels in waves, the basic components of which are
frequency, wavelength, velocity, and amplitude. Frequency is the number
of pressure waves that pass by a reference point per unit of time and
is measured in hertz (Hz) or cycles per second. Wavelength is the
distance between two peaks of a sound wave; lower frequency sounds have
longer wavelengths than higher frequency sounds and attenuate
(decrease) more rapidly in shallower water. Amplitude is the height of
the sound pressure wave or the `loudness' of a sound and is typically
measured using the decibel scale. A dB is the ratio between a measured
pressure (with sound) and a reference pressure (sound at a constant
pressure, established by scientific standards). It is a logarithmic
unit that accounts for large variations in amplitude; therefore,
relatively small changes in dB ratings correspond to large changes in
sound pressure. When referring to sound pressure levels (SPLs; the
sound force per unit area), sound is referenced in the context of
underwater sound pressure to 1 microPascal ([mu]Pa). One pascal is the
pressure resulting from a force of one newton exerted over an area of
one square meter. The source level (SL) represents the sound level at a
distance of 1 m from the source (referenced to 1 [mu]Pa). The received
level is the sound level at the listener's position. Note that all
underwater sound levels in this document are referenced to a pressure
of 1 [micro]Pa and all airborne sound levels in this document are
referenced to a pressure of 20 [micro]Pa.
Root mean square (rms) is the quadratic mean sound pressure over
the duration of an impulse, and is calculated by squaring all of the
sound amplitudes, averaging the squares, and then taking the square
root of the average (Urick 1983). Root mean square accounts for both
positive and negative values; squaring the pressures makes all values
positive so that they may be accounted for in the summation of pressure
levels (Hastings and Popper 2005). This measurement is often used in
the context of discussing behavioral effects, in part because
behavioral effects, which often result from auditory cues, may be
better expressed through averaged units than by peak pressures.
Acoustic Effects
Here, we first provide background information on marine mammal
hearing before discussing the potential effects of acoustic sources on
marine mammals.
To appropriately assess the potential effects of exposure to sound,
it is necessary to understand the frequency ranges marine mammals are
able to hear. Current data indicate that not all marine mammal species
have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok
and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et
al. (2007) recommended that marine mammals be divided into functional
hearing groups based on directly measured or estimated hearing ranges
on the basis of available behavioral response data, audiograms derived
using auditory evoked potential techniques, anatomical modeling, and
other data. Subsequently, NMFS (2016) described generalized hearing
ranges for these marine mammal hearing groups. Generalized hearing
ranges were chosen based on the approximately 65 dB threshold from the
normalized composite audiograms, with the exception for lower limits
for low-frequency cetaceans where the lower bound was deemed to be
biologically implausible and the lower bound from Southall et al.
(2007) retained. The functional groups and the associated frequencies
are indicated below (note that these frequency ranges correspond to the
range for the composite group, with the entire range not necessarily
reflecting the capabilities of every species within that group):
Low-frequency cetaceans (mysticetes): Generalized hearing
is estimated to occur between approximately 7 Hz and 35 kHz, with best
hearing estimated to be from 100 Hz to 8 kHz;
Mid-frequency cetaceans (larger toothed whales, beaked
whales, and most delphinids): Generalized hearing is estimated to occur
between approximately 150 Hz and 160 kHz, with best hearing from 10 to
less than 100 kHz;
High-frequency cetaceans (porpoises, river dolphins, and
members of the genera Kogia and Cephalorhynchus; including two members
of the genus Lagenorhynchus, on the basis of recent echolocation data
and genetic data): Generalized hearing is estimated to occur between
approximately 275 Hz and 160 kHz.
Pinnipeds in water; Phocidae (true seals): Generalized
hearing is estimated to occur between approximately 50 Hz to 86 kHz,
with best hearing between 1-50 kHz;
Pinnipeds in water; Otariidae (eared seals): Generalized
hearing is estimated to occur between 60 Hz and 39 kHz, with best
hearing between 2-48 kHz.
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
[[Page 19227]]
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2016) for a review of available information.
Three marine mammal species (one otariid and two phocid pinnipeds) have
the reasonable potential to co-occur with the proposed survey
activities. Please refer to Table 2.
The effects of sounds on marine mammals are dependent on several
factors, including the species, size, behavior (feeding, nursing,
resting, etc.), and depth (if underwater) of the animal; the intensity
and duration of the sound; and the sound propagation properties of the
environment. Impacts to marine species can result from physiological
and behavioral responses to both the type and strength of the acoustic
signature (Viada et al., 2008). The type and severity of behavioral
impacts are more difficult to define due to limited studies addressing
the behavioral effects of sounds on marine mammals. Potential effects
from impulsive sound sources can range in severity from effects such as
behavioral disturbance or tactile perception to physical discomfort,
slight injury of the internal organs and the auditory system, or
mortality (Yelverton et al., 1973).
The effects of sounds from the proposed activities are expected to
result in behavioral disturbance of marine mammals. Due to the expected
sound levels of the equipment proposed for use and the distance of the
planned activity from marine mammal habitat, the effects of sounds from
the proposed activities are not expected to result in temporary or
permanent hearing impairment (TTS and PTS, respectively), non-auditory
physical or physiological effects, or masking in marine mammals. Data
from monitoring reports associated with IHAs issued previously for
similar activities in the same location as the planned activities
provides further support for the assertion that TTS, PTS, non-auditory
physical or physiological effects, and masking are not likely to occur
(Hanan & Associates 2014; 2015; 2016). Therefore, TTS, PTS, non-
auditory physical or physiological effects, and masking are not
discussed further in this section.
Disturbance Reactions
Disturbance includes a variety of effects, including subtle changes
in behavior, more conspicuous changes in activities, and displacement.
Behavioral responses to sound are highly variable and context-specific
and reactions, if any, depend on species, state of maturity,
experience, current activity, reproductive state, auditory sensitivity,
time of day, and many other factors (Richardson et al., 1995; Wartzok
et al., 2003; Southall et al., 2007).
Habituation can occur when an animal's response to a stimulus wanes
with repeated exposure, usually in the absence of unpleasant associated
events (Wartzok et al., 2003). Animals are most likely to habituate to
sounds that are predictable and unvarying. The opposite process is
sensitization, when an unpleasant experience leads to subsequent
responses, often in the form of avoidance, at a lower level of
exposure. Behavioral state may affect the type of response as well. For
example, animals that are resting may show greater behavioral change in
response to disturbing sound levels than animals that are highly
motivated to remain in an area for feeding (Richardson et al., 1995;
NRC, 2003; Wartzok et al., 2003).
Controlled experiments with captive marine mammals have shown
pronounced behavioral reactions, including avoidance of loud underwater
sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed
responses of wild marine mammals to loud pulsed sound sources
(typically seismic guns or acoustic harassment devices) have been
varied but often consist of avoidance behavior or other behavioral
changes suggesting discomfort (Morton and Symonds, 2002; Thorson and
Reyff, 2006; see also Gordon et al., 2004; Wartzok et al., 2003;
Nowacek et al., 2007).
The onset of noise can result in temporary, short term changes in
an animal's typical behavior and/or avoidance of the affected area.
These behavioral changes may include (Richardson et al., 1995):
Reduced/increased vocal activities; changing/cessation of certain
behavioral activities (such as socializing or feeding); visible startle
response or aggressive behavior; avoidance of areas where sound sources
are located; and/or flight responses.
The biological significance of many of these behavioral
disturbances is difficult to predict, especially if the detected
disturbances appear minor. However, the consequences of behavioral
modification could potentially be biologically significant if the
change affects growth, survival, or reproduction. The onset of
behavioral disturbance from anthropogenic sound depends on both
external factors (characteristics of sound sources and their paths) and
the specific characteristics of the receiving animals (hearing,
motivation, experience, demography) and is difficult to predict
(Southall et al., 2007).
Marine mammals that occur in the project area could be exposed to
airborne sounds associated with construction and demolition activities
that have the potential to result in behavioral harassment, depending
on an animal's distance from the sound. Airborne sound could
potentially affect pinnipeds that are hauled out. Most likely, airborne
sound would cause behavioral responses similar to those discussed above
in relation to underwater sound. For instance, anthropogenic sound
could cause hauled out pinnipeds to exhibit changes in their normal
behavior, such as reduction in vocalizations, or cause them to
temporarily abandon their habitat and move further from the source.
Hauled out pinnipeds may flush into the water, which can potentially
result in pup abandonment. Site-specific monitoring data described
below indicate that pup abandonment is not likely to occur at this site
as a result of the specified activity.
Behavioral Responses of Pinnipeds to Construction and Demolition
The City has monitored pinniped responses to construction at
Children's Pool beach for the past three years as a requirement of
previously issued IHAs for construction of the lifeguard station on the
bluffs above Children's Pool (NMFS 2013; 2014; 2015). The equipment
associated with the planned construction and demolition activities at
Coast Boulevard would be very similar to the equipment associated with
the IHAs issued previously for the lifeguard station construction
project, sound levels are expected to be substantially similar, and the
project location and marine mammal species affected are expected to be
the same. Thus, we rely on observational data on responses of pinnipeds
to demolition and construction of the lifeguard station at Children's
Pool beach in drawing conclusions about expected pinniped responses to
sound associated with the planned project.
NMFS previously issued three consecutive IHAs to the City of San
Diego for the incidental take of marine mammals associated with the
demolition of the existing lifeguard station at Children's Pool beach
and the construction of a new lifeguard station at the same location,
from June 2013 through June 2016 (NMFS 2013; 2014; 2015). The first IHA
was effective June 28, 2013 through June 27, 2014; the second IHA was
valid June 28, 2014 through June 27, 2015; the third IHA was valid June
28, 2015 through June 27, 2016. All of the IHAs authorized take of
Pacific harbor seals, California
[[Page 19228]]
sea lions, and northern elephant seals, in the form of Level B
harassment, incidental to demolition and construction activities.
From 2013-2016, protected species observers collected data over a
total of 3,376 hourly counts at seven sites around the project and
Children's Pool beach. Observed reactions of pinnipeds at Children's
Pool to demolition and construction of the lifeguard station ranged
from no response to heads-up alerts, from startle responses to some
movements on land, and some movements into the water (Hanan &
Associates 2014; 2015; 2016). There were no documented occurrences of
take by Level A harassment throughout the three years of monitoring
(Hanan & Associates 2014; 2015; 2016). Data from the three years of
monitoring also suggests there was no site abandonment on the part of
harbor seals a result of the project (Hanan & Associates 2014; 2015;
2016). Based on the data from these three previously issued IHAs, we
expect that any behavioral responses by pinnipeds to the planned
project would be very similar to those that resulted from the
previously authorized lifeguard station project: From no response to
heads-up alerts, startle responses, some movements on land, and some
movements into the water (flushing).
Estimated Take by Incidental Harassment
This section provides an estimate of the number of incidental takes
proposed for authorization through this IHA, which will inform both
NMFS' consideration of whether the number of takes is ``small'' and the
negligible impact determination.
Harassment is the only type of take expected to result from these
activities. 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 authorized takes would be by Level B harassment only, in the
form of disruption of behavioral patterns for individual marine mammals
resulting from exposure to sounds associated with the planned
construction and demolition activities. Based on the nature of the
activity, Level A harassment is neither anticipated nor proposed to be
authorized. The death of a marine mammal is also a type of incidental
take. However, in the case of the planned project it is unlikely that
injurious or lethal takes would occur even in the absence of the
planned mitigation and monitoring measures, and no mortality is
anticipated or proposed to be authorized for this activity. The current
NMFS thresholds for behavioral harassment of pinnipeds from airborne
noise are shown in Table 3.
Table 3--Current NMFS Criteria for Pinniped Harassment Resulting From
Exposure to Airborne Sound
------------------------------------------------------------------------
Level B harassment Level A harassment
Species threshold threshold
------------------------------------------------------------------------
Harbor seals.................... 90 dB re 20 Not defined
[micro]Pa.
Other pinniped species.......... 100 dB re 20 Not defined
[micro]Pa.
------------------------------------------------------------------------
NMFS currently uses a three-tiered scale to determine whether the
response of a pinniped on land to acoustic or visual stimuli is
considered an alert, a movement, or a flush. NMFS considers the
behaviors that meet the definitions of both movements and flushes to
qualify as behavioral harassment. Thus a pinniped on land is considered
by NMFS to have been behaviorally harassed if it moves greater than two
times its body length, or if the animal is already moving and changes
direction and/or speed, or if the animal flushes from land into the
water. Animals that become alert without such movements are not
considered harassed. See Table 4 for a summary of the pinniped
disturbance scale.
Table 4--Levels of Pinniped Behavioral Disturbance on Land
------------------------------------------------------------------------
Type of
Level response Definition
------------------------------------------------------------------------
1............................ Alert.......... Seal head orientation or
brief movement in
response to
disturbance, which may
include turning head
towards the
disturbance, craning
head and neck while
holding the body rigid
in a u-shaped position,
changing from a lying
to a sitting position,
or brief movement of
less than twice the
animal's body length.
2............................ Movement....... Movements away from the
source of disturbance,
ranging from short
withdrawals at least
twice the animal's body
length to longer
retreats over the
beach, or if already
moving a change of
direction of greater
than 90 degrees.
3............................ Flush.......... All retreats (flushes)
to the water.
------------------------------------------------------------------------
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 such as the proposed project, 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 is stronger than the deterrence presented by
the harassing activity.
The take calculations presented here rely on the best information
currently available for marine mammal populations in the Children's
Pool area. Below we describe how the take was estimated for the planned
project.
Pacific Harbor Seal
The take estimate for harbor seal was based on the following steps:
(1) Estimate the total area (m\2\) of harbor seal haulout habitat
available at Children's Pool;
(2) Estimate the total area of available haulout habitat expected
to be ensonified to the airborne Level B
[[Page 19229]]
harassment threshold for harbor seals (90 dB re 20 [micro]Pa) based on
total haulout area and the percentage of total haulout area expected to
be ensonified to the Level B harassment threshold;
(3) Estimate the daily number of seals exposed to sounds above
Level B harassment threshold by multiplying the total area of haulout
habitat expected to be ensonified to the Level B threshold by the
expected daily number of seals on Children's Pool;
(4) Estimate the total number of anticipated harbor seals taken
over the duration of the project by multiplying the daily number of
seals exposed to noise above the Level B harassment threshold by the
number of total project days in which project-related sounds may exceed
the Level B harassment threshold.
As described above, Children's Pool is designated as a shared-use
beach. The beach and surrounding waters are used for swimming, surfing,
kayaking, diving, tide pooling, and nature watching, thus the beach is
shared between humans and pinnipeds. To discourage people from
harassing pinnipeds hauled out on the beach, a guideline rope, oriented
parallel to the water, bisects the beach into upper (western) and lower
(eastern) beach areas; people are encouraged to stay on the western
side of the guideline rope, allowing seals to use the eastern section
of beach that provides access to the water. The City's estimate of
available pinniped habitat was based on the total area of the beach
between the guideline rope and the mean lower low water line. Thus, the
area considered for this analysis to be available as haulout habitat is
the total area east of the rope and west of the mean lower low water
line, while the area west of the rope is assumed to be unavailable as
pinniped habitat (See Figure 5 in the IHA application for the location
of the guideline rope, and the area assumed to be available haulout
habitat). The City estimated that there are 2,509 m\2\ east of the
guideline rope; therefore it is assumed that there is a total of 2,509
m\2\ of available pinniped habitat on Children's Pool (Figure 5 in IHA
application).
The City estimated the area of available harbor seal habitat at
Children's Pool beach that would be ensonified to the Level B
harassment threshold by estimating the distance to the Level B
harassment threshold from sounds associated with the planned
activities, then calculating the percentage of available haulout
habitat at Children's Pool that would be ensonified to that threshold
based on the total available habitat and the distance to the Level B
harassment threshold.
To estimate the distance to the in-air Level B harassment threshold
for harbor seals (90 dB rms) for the planned project, the City first
used a spherical spreading loss model, assuming average atmospheric
conditions. The spreading loss model predicted that the 90 dB isopleth
would be reached at 10 m (33 ft). However, data from in situ recordings
conducted during the lifeguard station project at Children's Pool
indicated that peak sound levels of 90 to 103 dB were recorded at
distances of 15 m to 20 m (49 to 66 ft) from the source when the
loudest construction equipment (source levels ranging from 100 to 110
dB) was operating. The City estimated that the loudest potential sound
sources associated with the planned project would be approximately 110
dB rms (Table 1), based on manufacturer specifications and previous
recordings of similar equipment used during the lifeguard station
project at Children's Pool (Hanan & Associates 2014; 2015; 2016).
Therefore, the City estimated that for the sound sources expected to
result in the largest isopleths (those with SLs estimated at up to 110
dB), the area expected to be ensonified to the in-air Level B
harassment threshold for harbor seals (90 dB rms) would extend to
approximately 20 m from the sound source. To be conservative, the City
used this distance (20 m) based on the data from previous site-specific
monitoring, rather than the results of the spherical spreading loss
model, to estimate the predicted distance to the in-air Level B
harassment threshold for harbor seals.
Based on the estimated distance to the in-air Level B harassment
threshold for harbor seals (20 m from the sound source), the City
estimated 647 m\2\ of total available harbor seal habitat at Children's
Pool beach would be ensonified to the Level B harassment threshold, the
City therefore estimated that approximately 25.8 percent (647/2,509) of
available harbor seal haulout habitat at Children's Pool beach would be
ensonified to the Level B harassment threshold (Figure 5 in IHA
application). This information has been used to derive the take
estimate only; the entire beach would be observed in order to document
potential actual take.
The estimated daily take of harbor seals was based on the number of
harbor seals expected to occur daily in the area ensonified to the
Level B harassment threshold. In their IHA application, the City
estimated that 200 harbor seals would be present on Children's Pool
beach per day, based on literature that reported this number as the
maximum number of seals recorded at Children's Pool (Linder 2011).
However, NMFS believes it is more appropriate to use the average number
of seals observed on Children's Pool beach, as opposed to the maximum
number of seals, to estimate the likely number of takes of harbor seals
as a result of the planned project. During 3,376 hourly counts
associated with monitoring for IHAs issued for construction and
demolition at the lifeguard station at Children's Pool in 2013-14,
2014-15, and 2015-16, there was an average of 54.5 harbor seals
(including pups) recorded daily on Children's Pool beach (pers. comm.,
D. Hanan, Hanan & Associates, to J. Carduner, NMFS, April 04, 2017). We
therefore estimated that 55 harbor seals would occur on Children's Pool
per day, and used this number to estimate take of harbor seals as a
result of the planned project. Based on an estimate of 55 total harbor
seals on Children's Pool per day, and an estimated 25.8 percent of
total haulout habitat ensonified to the Level B harassment threshold
for harbor seals, we estimated that an average of 14.2 (rounded to 15)
takes of harbor seals by Level B harassment would occur per day.
The City estimated that the total duration of the project would be
164 days. However, activities involving equipment that could result in
sound source levels of 101-110 dB would occur on a maximum of 108
project days (pers. comm., D. Langsford, Tierra Data, to, J. Carduner,
NMFS, April 03, 2017). Based on the distance of the project to
Children's Pool and previous monitoring reports, we believe it is
unlikely that project-related activities with expected source levels at
or below 100 dB rms would result in sound exposure levels at or above
90 dB among any pinnipeds at Children's Pool. Planned project-related
activities would occur on top of a natural cliff in an area of
increasing elevation above the beach, therefore we do not believe
visual stimuli from the project would result in behavioral harassment
of any marine mammals. Therefore, we do not expect that activities with
expected source levels of 100 dB and below would result in take of
marine mammals. Thus, our take estimate is based on the number of days
in which source levels associated with the planned project could be
between 100 and 110 dB rms. Based on an estimate of 15 takes of harbor
seals per day by Level B harassment, over a total of 108 days the
project would be expected to result in a total of 1,620 takes of harbor
seals by Level B harassment. We therefore propose to
[[Page 19230]]
authorize a total of 1,620 incidental takes of harbor seals by Level B
harassment only. The City requested authorization for the 8,528 takes
of harbor seals, however, based on the rationale described above, we
propose to authorize 1,620 incidental takes of 1,620 harbor seals.
California Sea Lion
As described above, California sea lions are occasional visitors to
Children's Pool. The most reliable estimates of likely California sea
lion occurrence in the project area come from monitoring reports
associated with IHAs issued previously for demolition and construction
of the lifeguard station at Children's Pool. In 2015-16 there were 71
observations of California sea lions on Children's Pool over 209 days
of monitoring, for an average of one California sea lion observed on
Children's Pool approximately every three days. Based on this ratio, we
estimate that a total of 55 observations of California sea lions on
Children's Pool during the entire duration of the project (164 days);
however as described above we do not think take is likely to occur on
days in which source levels are below 100 dB. We expect one take of
California sea lion would occur for every 3 days of the project in
which source levels are anticipated to be between 101-110 dB (108 total
days). We therefore propose to authorize 36 incidental takes of
California sea lions by Level B harassment only. This is considered a
conservative estimate as the threshold for Level B harassment for
California sea lions is different than that for harbor seals (Table 3).
The City requested authorization for 100 takes of California sea lions,
however we instead propose to authorize 36 incidental takes of
California sea lions.
Northern Elephant Seal
As described above, northern elephant seals are occasional visitors
to Children's Pool. The most reliable estimates of likely northern
elephant seal occurrence in the project area come from monitoring
reports associated with IHAs issued previously for demolition and
construction of the lifeguard station at Children's Pool. In 2015-16
there were 26 observations of northern elephant seals on Children's
Pool over 209 days of monitoring, for an average of one northern
elephant seal observed on Children's Pool approximately every eight
days. Based on this ratio, we estimate a total of 20 northern elephant
seals would be observed on Children's Pool during the entire duration
of the project (164 days); however as described above we do not think
take is likely to occur on days in which source levels are below 100
dB. We expect one northern elephant seal take would occur for every
eight days of the project in which source levels are anticipated to be
between 101-110 dB (108 total days). We therefore propose to authorize
14 incidental takes of northern elephant seals by Level B harassment
only. This is considered a conservative estimate as the threshold for
Level B harassment for northern elephant seals is different than that
for harbor seals (Table 3). The City requested authorization for 50
takes of northern elephant seals, however we instead propose to
authorize 14 incidental takes of northern elephant seals.
Table 5--Summary of Estimated Numbers of Marine Mammals Potentially
Taken by the Planned Project
------------------------------------------------------------------------
Level A Level B
Species takes takes Total
------------------------------------------------------------------------
Harbor seal...................... 0 1,620 1,620
California sea lion.............. 0 36 36
Northern elephant seal........... 0 14 14
------------------------------------------------------------------------
Effects of Specified Activities on Subsistence Uses of Marine Mammals
There are no relevant subsistence uses of marine mammals implicated
by this action. Therefore, NMFS has 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.
Proposed 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 (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting such
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable impact on species or stocks and their
habitat, as well as subsistence uses where applicable, we carefully
balance two primary factors: (1) The manner in which, and the degree to
which, the successful implementation of the measure(s) is expected to
reduce impacts to marine mammals, marine mammal species or stocks, and
their habitat--which considers the nature of the potential adverse
impact being mitigated (likelihood, scope, range), as well as the
likelihood that the measure will be effective if implemented; and the
likelihood of effective implementation, and; (2) the practicability of
the measures for applicant implementation, which may consider such
things as cost, impact on operations, and, in the case of a military
readiness activity, personnel safety, practicality of implementation,
and impact on the effectiveness of the military readiness activity.
Any mitigation measure(s) prescribed by NMFS should be able to
accomplish, have a reasonable likelihood of accomplishing (based on
current science), or contribute to the accomplishment of one or more of
the general goals listed below:
1. Avoidance or minimization of injury or death of marine mammals
wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or
number at biologically important time or location) exposed to
activities expected to result in the take of marine mammals (this goal
may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at
biologically important time or location) individuals would be exposed
to activities expected to result in the take of marine mammals
[[Page 19231]]
(this goal may contribute to 1, above, or to reducing harassment takes
only).
4. A reduction in the intensity of exposures (either total number
or number at biologically important time or location) to activities
expected to result in the take of marine mammals (this goal may
contribute to 1, above, or to reducing the severity of harassment takes
only).
5. Avoidance or minimization of adverse effects to marine mammal
habitat, paying special attention to the food base, activities that
block or limit passage to or from biologically important areas,
permanent destruction of habitat, or temporary destruction/disturbance
of habitat during a biologically important time.
6. For monitoring directly related to mitigation--an increase in
the probability of detecting marine mammals, thus allowing for more
effective implementation of the mitigation.
Mitigation for Marine Mammals and Their Habitat
The City has proposed several mitigation measures. These measures
include the following:
Moratorium during harbor seal pupping season: Demolition
and construction would be prohibited during the Pacific harbor seal
pupping season (December 15th to May 15th) and for an additional two
weeks to accommodate lactation and weaning of late season pups. Thus
construction would be prohibited from December 15th to May 29th. This
measure is designed to avoid any potential adverse impacts to pups that
may otherwise occur, such as abandonment by mothers as a result of
harassment.
Activities limited to daylight hours only: Construction
and demolition would be limited to daylight hours only (7 a.m. to 7
p.m., or 30 minutes before sunset depending on time of year). This
measure is designed to facilitate the ability of MMOs to effectively
monitor potential instances of harassment and to accurately document
behavioral responses of pinnipeds to project-related activities.
Timing constraints for very loud equipment: To minimize
potential impacts to marine mammals, construction and demolition
activity involving use of very loud equipment (e.g., jackhammers) would
be scheduled during the daily period of lowest pinniped haul-out
occurrence, between the hours of 8:30 a.m. to 3:30 p.m., to the maximum
extent practical. This measure is designed to minimize the number of
pinnipeds exposed to sounds that may result in harassment. Construction
and demolition may be extended from 7 a.m. to 7 p.m. (daylight hours
only) to help ensure the project is completed in 2017, prior to the
moratorium during the harbor seal pupping season starting December
15th, so as to reduce the overall duration of the project.
Marine mammal observers (MMO): Trained MMOs would be used
to detect and document project-related impacts to marine mammals,
including any behavioral responses to the project. This measure is
designed to facilitate the City's ability to increase the understanding
of the effects of the action on marine mammal species and stocks. More
information about this measure is contained in the ``Proposed
Monitoring'' section below.
Based on our evaluation of the applicant's proposed measures, NMFS
has preliminarily determined that the proposed mitigation measures
provide the means effecting the least practicable impact on the
affected species or stocks and their habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance.
Proposed 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
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. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
Occurrence of marine mammal species or stocks in the area
in which take is anticipated (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 marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors.
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks.
Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat).
Mitigation and monitoring effectiveness.
Proposed Monitoring
The City has developed a Monitoring Plan specific to the project
which establishes protocols for both acoustic and marine mammal
monitoring. The objectives of the Monitoring Plan are to observe and
document real-time sound levels in the project area, to document
observed behavioral responses to project activities, and to record
instances of marine mammal harassment. Monitoring would be conducted
before, during, and after project activities to evaluate the impacts of
the project on marine mammals. The Monitoring Plan can be found in
Appendix C of the City's IHA application.
The Monitoring Plan encompasses both acoustic monitoring and marine
mammal monitoring. Marine mammal monitoring would be conducted to
assess the number and species, behavior, and responses of marine
mammals to project-related activities as well as other sources of
disturbance, as applicable. Acoustic monitoring would measure in-air
sound pressure levels during ambient conditions and during project
activities to measure sound levels associated with the project and to
determine distances within which Level B acoustic harassment
disturbance are expected to occur. More details are provided below.
Acoustic Monitoring
Monitors would collect real-time acoustic data of construction
activities to determine SPL values during demolition and construction
activities, and to determine distances to zones within which SPLs are
expected to meet or exceed airborne Level B harassment thresholds for
harbor seals and other pinnipeds. Environmental data would also be
collected to provide information on the weather, visibility, sea state,
and
[[Page 19232]]
tide conditions during monitoring surveys.
Sound level meters would be used to document SPLs at near-field and
far-field locations during all surveys, and to determine the distances
to Level B harassment thresholds. Far-field locations will include the
western end of the beach, the middle of the guideline rope and the
eastern edge of the beach. The total number and locations of the
monitoring stations would be determined during each survey based on the
location of construction activities and likelihood for sound levels to
meet or exceed in-air SPL harassment thresholds in areas where marine
mammals are observed at Children's Pool. Refer to Section 3 of the
Monitoring Plan for further details on the acoustic monitoring plan.
Marine Mammal Monitoring
Marine mammal monitoring would be conducted by qualified MMOs to
document behavioral responses of marine mammals to the planned project.
Monitors would document the behavior of marine mammals, the number and
types of responses to disturbance, and the apparent cause of any
reactions. Marine mammals displaying behavioral responses to
disturbance would be assessed for the apparent cause of disturbance.
All responses to stimuli related to the project would be documented;
responses that rise to the level of behavioral harassment (Table 4)
would be documented as takes.
Marine mammal observations may be made from vantage points on the
beach or from overlook areas that provide an unobstructed view of the
beach. Monitoring on the beach would be behind the guideline rope to
minimize potential disturbance to hauled out marine mammals.
The following data would be collected during the marine mammal
monitoring surveys:
Dates and times of marine mammal observations.
Location of observations.
Construction activities occurring during each observation
period. Any substantial change in construction activities (especially
cessation) during observation periods should be noted.
Human activity in the area; number of people on the beach,
adjacent overlooks, and in the water.
Counts by species of pinnipeds, and if possible sex and
age class.
Number and type of responses to disturbance, such as
alert, flush, vocalization, or other with a description.
Apparent cause of reaction.
The extent of marine mammal monitoring required would depend on
recorded sound levels of the activities performed; sound levels would
be verified through acoustic monitoring as described above. At the
start of each new phase of demolition and construction (i.e., same type
of activity and equipment), a full day of marine mammal monitoring
would occur. This monitoring would include a Pre-Construction Activity
Survey, hourly Construction Activity Surveys, and a Post-Construction
Activity Survey. Pre-Construction Activity Surveys would include
recordings of the times of observations, environmental conditions, and
maximum ambient SPLs at the recording location at the top of the bluff
adjacent to the project site, and at the three far-field locations, and
would occur at least 30 minutes prior to the start of construction
activities. Hourly Construction Activity Surveys would record times of
observations, environmental conditions, and maximum SPLs at near-field
and far-field locations. Post-Construction Activity Surveys would
record times of observations, environmental conditions, and maximum
ambient SPLs at all monitoring locations surveyed during the
Construction Activity Surveys. Marine mammal monitoring data will be
collected, as noted above. The number of days of subsequent monitoring
required after the first day of monitoring for each new construction
phase would depend on the results of acoustic monitoring, as follows:
(a) If Acoustic monitoring on the first day of a new phase of
construction documents sound levels of 90 dB rms or greater at any far-
field location, then daily monitoring would be required throughout that
phase of construction.
(b) If Acoustic monitoring on the first day of a new phase of
construction documents sound levels of 90 dB rms or greater at the
near-field location, but not at any far-field location, then a minimum
of two additional days of monitoring would be required to confirm far-
field sound levels remain less than 90 dB rms for construction phase
durations of less than 4 weeks. Monitoring would be conducted weekly to
confirm far-field sound levels remain less than 90 dB rms for
construction phase durations of greater than 4 weeks. If during the
additional monitoring, sound levels of 90 dB or greater are recorded at
any far-field location, then daily monitoring would be required until
the end of that construction phase.
(c) If Acoustic monitoring on the first day of a new phase of
construction documents sound levels of less than 90 dB rms at the near-
field location(s), then one additional day of monitoring would be
conducted to confirm near-field sound levels remain less than 90 dB
rms. If a sound level of greater than 90 dB rms is measured at the
near-field location on the second day of monitoring, then additional
days of monitoring would be conducted consistent with the specification
listed under item (b) above.
Marine mammal monitoring would be conducted by a qualified MMO 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 the ability to estimate target size and distance; use of
binoculars may be necessary to correctly identify the target;
A minimum of a Bachelor's degree in biological science,
wildlife management, mammalogy, or related field;
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, and identification of marine mammal behavior;
Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
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 needed; and
Writing skills sufficient to prepare a report of
observations.
As noted above, Guadalupe and northern fur seals would be
considered extralimital to the project area; however, as fur seals have
been occasionally observed in the area, the MMO would ensure that take
of fur seals is avoided. In the event that a fur seal or another
species of marine mammal for which take is not authorized in the IHA,
if issued, are observed either on the rocks, beach, or in the water at
Children's Pool prior to commencement of activities, the MMO would
alert the stranding network, as the occurrence of these species would
typically indicate a sick/injured animal, and activities would be
postponed until coordination with the stranding network is complete
(including any potential 24-hour or 48-hour wait/observation period)
and/or the animal either leaves, or is collected by the stranding
network.
Marine mammal monitoring protocols are described in greater detail
in Section 4 of the City's Monitoring Plan.
[[Page 19233]]
Proposed Reporting
A final monitoring report would include data collected during
marine mammal monitoring and acoustic and environmental monitoring as
described above. The monitoring report would include a narrative
description of project related activities, counts of marine mammals by
species, sex and age class, a summary of marine mammal species/count
data, a summary of marine mammal responses to project-related
disturbance, and responses to other types of disturbances. The
monitoring report would also include a discussion of seasonal and daily
variations in the abundance of marine mammals at Children's Pool, the
relative percentage of marine mammals observed to react to construction
activities and their observed reactions, and the number of marine
mammals taken as a result of the project based on the criteria shown in
Table 4.
A draft report would be submitted to NMFS within 60 calendar days
of the completion of acoustic measurements and marine mammal
monitoring. The results would be summarized in tabular/graphical forms
and include descriptions of acoustic sound levels and marine mammal
observations according to type of construction activity and equipment.
A final report would be prepared and submitted to NMFS within 30 days
following receipt of comments on the draft report from NMFS. Proposed
reporting measures are described in greater detail in Section 6 of the
City's Monitoring Plan.
If issued, this would be the first IHA issued for the planned
activity. Monitoring reports from IHAs issued to the City in 2013,
2014, and 2015 for the lifeguard station construction project at
Children's Pool reported that pinniped responses to that project ranged
from no response to heads-up alerts, from startle responses to some
movements on land, and some movements into the water (Hanan &
Associates 2014; 2015; 2016). There were no documented occurrences of
Level A takes throughout the three years of monitoring (Hanan &
Associates 2014; 2015; 2016). Data from the three years of monitoring
indicates no site abandonment by harbor seals a result of the project
(Hanan & Associates 2014; 2015; 2016). Monitoring reports from previous
IHAs issued to the City for lifeguard tower construction at Children's
Pool can be found on our Web site at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. The monitoring report from the previous
IHA issued to the City for a sand quality study at Children's Pool can
be found on our Web site at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm.
Negligible Impact Analysis and Determination
NMFS has defined negligible impact 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 (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects).
An estimate of the number of 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 harassment, NMFS considers 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 effects on habitat, and the likely effectiveness of the
mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS's implementing
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, or
ambient noise levels).
If a marine mammal responds to a stimulus by changing its behavior
(e.g., through relatively minor changes in locomotion direction/speed
or vocalization behavior), the response may or may not constitute
taking at the individual level, and is unlikely to affect the stock or
the species as a whole. However, if a sound source displaces marine
mammals from an important feeding or breeding area for a prolonged
period, impacts on animals or on the stock or species could potentially
be significant (e.g., Lusseau and Bejder 2007; Weilgart 2007).
Although the City's planned activities may disturb pinnipeds hauled
out at Children's Pool, any project-related impacts are expected to
occur to a small, localized group of marine mammals, in relation to the
overall stocks of marine mammals considered here. Pinnipeds would
likely become alert or, at most, flush into the water in response to
sounds from the planned project. Disturbance is not expected to occur
during particularly sensitive times for any marine mammal species, as
mitigation measures have been specifically designed to avoid project-
related activity during harbor seal pupping season to eliminate the
possibility for pup injury or mother-pup separation. No injury, serious
injury, or mortality is anticipated, nor is the proposed action likely
to result in long-term impacts such as permanent abandonment of the
haulout (Hanan & Associates 2016).
Children's Pool is not known as an important feeding area for
harbor seals, but does serve as a harbor seal rookery. Therefore, if
displacement of seals or adverse effects to pups were an expected
outcome of the planned activity, impacts to the stock could potentially
result. However, site abandonment is not expected to occur as a result
of the planned project. We base this expectation on results of previous
monitoring reports from the three consecutive IHAs issued to the City
for construction and demolition of the lifeguard station at Children's
Pool. Over three-plus years of consecutive monitoring (2013-2016) there
was no site abandonment by harbor seals a result of the project (Hanan
& Associates 2014; 2015; 2016). Adverse effects to pups are not
expected to occur. The moratorium on project-related activity during
the harbor seal pupping season (December 15-May 15) is expected to
minimize any potential adverse effects to pups such as mother-pup
separation. Takes of harbor seal as a result of the project are
expected to be low relative to stock size (approximately five percent).
Additionally, as there are an estimated 600 harbor seals using
Children's Pool beach during a year (Linder 2011), proposed authorized
takes of harbor seals (Table 5) are expected to be repeated incidences
of take to a smaller number of individuals, and not individuals taken,
as described above. These takes are not expected to interfere with
breeding, sheltering or feeding. For the reasons stated above, we do
not expect the planned project to affect annual rates of recruitment or
survival for harbor seals.
Children's Pool does not represent an important feeding or breeding
area for either northern elephant seals or California sea lion, and
neither species uses the project location as a pupping site. Takes of
both species are expected to be very low relative to the stock sizes
(less than one percent of the stock for each species) and no take by
Level A harassment is anticipated to occur as a result of the project
for either northern
[[Page 19234]]
elephant seals or California sea lions. Takes that occur are expected
to be in the form of behavioral harassment, specifically changes in
direction or possibly flushing to the water. These takes are not
expected to interfere with breeding, sheltering or feeding. For the
reasons stated above, we do not expect the planned project to affect
annual rates of recruitment or survival for northern elephant seals or
California sea lions.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect the species or stock
through effects on annual rates of recruitment or survival:
No mortality is anticipated or authorized.
No injury is expected. Over the course of 3,376 hourly
counts associated with monitoring for IHAs issued to the City for
construction and demolition of the lifeguard station at Children's Pool
in 2013-14, 2014-15, and 2015-16, no takes by Level A harassment were
documented. As the planned project would entail equipment with similar
expected sound levels to those that occurred during the lifeguard
station project at Children's Pool, but would occur further from the
haulout location than the lifeguard station project, we do not expect
take by Level A harassment to occur as a result of the planned project.
Behavioral disturbance--Takes are expected to be in the
form of behavioral disturbance only. Based on the sound levels
anticipated and based on the monitoring reports from previous IHAs
issued for similar activities at the same location, behavioral
responses are expected to range from no response to alerts, to
movements or changes in direction, to possible movements into the water
(flushes). Planned mitigation described above is expected to limit the
number and/or severity of behavioral responses, and those that occur
are not expected to be severe.
Important Areas--As described above, there are no
important feeding, breeding or pupping areas that would be affected by
the planned project for northern elephant seals and California sea
lions. For harbor seal, Children's Pool represents a pupping location.
However, as described above, mitigation measures including the
moratorium during pupping season (December 15 to May 15) are expected
to avoid any potential impacts to pups, such as mother-pup separation.
Data from the three years of monitoring suggests that despite
documented instances of harassment resulting from the lifeguard station
project, there was no site abandonment a result of the project (Hanan &
Associates 2014; 2015; 2016). Therefore, the planned project is not
expected to negatively affect pups of any species, and is not expected
to result in any impacts to annual rates of recruitment or survival.
Species/Stock scale--As described above, the planned
project would impact only a very small percentage of the stocks
(approximately five percent for harbor seal, less than one percent for
northern elephant seal and California sea lion) and would only impact
all marine mammal stocks over a very small portion of their ranges.
Species/stock status--No marine mammal species for which
take authorization is proposed are listed as threatened or endangered
under the ESA and no mammal stocks for which take authorization is
proposed are determined to be strategic or depleted under the MMPA.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under Section 101(a)(5)(D) of the MMPA for specified
activities other than military readiness activities. The MMPA does not
define small numbers and so, in practice, NMFS compares the number of
individuals taken to the most appropriate estimation of abundance of
the relevant species or stock in our determination of whether an
authorization is limited to small numbers of marine mammals.
The numbers of marine mammals authorized to be taken for harbor
seal, California sea lion, and northern elephant seal, would be
considered small relative to the relevant stocks or populations
(approximately five percent for harbor seal and less than one percent
for northern elephant seal and California sea lion) even if each
estimated take occurred to a new individual. However we believe it is
extremely unlikely that each estimated take would occur to a new
individual, and more likely that multiple takes would accrue to the
same individuals.
As described above, 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
this can result in a take estimate that overestimates the number of
individuals harassed. In particular, for stationary activities, such as
the proposed project, 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. This
is especially true for those individuals display some degree of
residency or site fidelity and the impetus to use the site is stronger
than the deterrence presented by the harassing activity, as is the case
with harbor seals that use Children's Pool as a haulout.
For the reasons described above, we expect that there will almost
certainly be some overlap in individuals present day-to-day at the
project site, and the proposed total numbers of authorized takes are
expected to occur only within a small portion of the overall regional
stocks. Thus while we propose to authorize the instances of incidental
take shown in Table 6, we believe that the number of individual marine
mammals that would be incidentally taken by the proposed project would
be substantially lower than these numbers.
Table 6--Estimated Numbers of Take and Percentages of Marine Mammal
Stocks That May Be Taken
------------------------------------------------------------------------
Proposed Stock Percentage
Level B abundance of stock or
Species take estimate population
authorized \1\ (percent)
------------------------------------------------------------------------
Harbor seal...................... 1,620 30,968 5
California sea lion.............. 36 296,750 <1
[[Page 19235]]
Northern elephant seal........... 14 179,000 <1
------------------------------------------------------------------------
\1\ NMFS 2015 marine mammal stock assessment reports (Carretta et al.,
2016) available online at: www.nmfs.noaa.gov/pr/sars/.
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals will be taken relative to the population size
of the affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
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)
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally with our ESA Interagency Cooperation Division
whenever we propose to authorize take for endangered or threatened
species.
No incidental take of ESA-listed species is proposed for
authorization or expected to result from this activity. Therefore, NMFS
has determined that formal consultation under section 7 of the ESA is
not required for this action.
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to
issue an IHA to the City of San Diego for conducting demolition and
construction at Coast Boulevard, La Jolla, California, from June 1,
2017 through December 14, 2017, provided the previously mentioned
mitigation, monitoring, and reporting requirements are incorporated.
This section contains a draft of the IHA itself. The wording contained
in this section is proposed for inclusion in the IHA (if issued).
1. This Incidental Harassment Authorization (IHA) is valid from
June 1, 2017 through December 14, 2017. This IHA is valid only for
demolition and construction activities associated with the public
parking lot, sidewalk, and landscaping improvement project at Coast
Boulevard in La Jolla, California.
2. General Conditions
(a) A copy of this IHA must be in the possession of the City, its
designees, and work crew personnel operating under the authority of
this IHA.
(b) The species authorized for taking are the Pacific harbor seal
(Phoca vitulina), California sea lion (Zalophus californianus), and
northern elephant seal (Mirounga angustirostris).
(c) The taking, by Level B harassment only, is limited to the
species listed in condition 2(b).
(d) The take by injury (Level A harassment), serious injury, or
death, or the taking of any other species of marine mammal not listed
in condition 2(b), is prohibited and may result in the modification,
suspension, or revocation of this IHA.
(e) The City shall conduct briefings between construction
supervisors and crews, marine mammal monitoring team, and acoustical
monitoring team prior to the start of all demolition and construction
activities, and when new personnel join the work, in order to explain
responsibilities, communication procedures, marine mammal monitoring
protocol, and operational procedures.
3. Mitigation Measures
The holder of this Authorization is required to implement the
following mitigation measures.
(a) Demolition and construction shall be prohibited during the
Pacific harbor seal pupping season (December 15th to May 15th) and for
an additional two weeks to accommodate lactation and weaning of late
season pups.
(b) Demolition and construction shall be limited to daylight hours
only (7:00 a.m. to 7:00 p.m., or 30 minutes before sunset depending on
time of year).
(c) Construction and demolition activity involving use of very loud
equipment (e.g., jackhammers) shall be scheduled between the hours of
8:30 a.m. to 3:30 p.m., to the maximum extent practical, but may be
extended from 7:00 a.m. to 7:00 p.m. (daylight hours only).
(d) Monitoring shall be conducted by a trained marine mammal
observer (MMO).
(i) The MMO shall have no other construction-related tasks while
conducting monitoring and shall be trained on species identification,
how to observe, and how to fill out the data sheets prior to any
construction or demolition activities.
(ii) Monitoring shall take place from 30 minutes prior to
initiation of demolition or construction activity through 30 minutes
post-completion of such activity.
(iii) The MMO shall have the following minimum qualifications:
1. 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;
2. A minimum of a Bachelor's degree in biological science, wildlife
management, mammalogy, or related field;
3. Experience and ability to conduct field observations and collect
data according to assigned protocols (this may include academic
experience);
4. Experience or training in the field identification of marine
mammals, and identification of marine mammal behavior;
5. Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
6. Writing skills sufficient to prepare a report of observations;
and
7. 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.
4. Monitoring
The holder of this Authorization is required to implement the
following monitoring measures:
[[Page 19236]]
(a) The City shall collect sighting data and shall record observed
behavioral responses to project activities for marine mammal species
observed in the region of activity during the period of activity;
(b) All visual marine mammal information shall be recorded as
described in the Monitoring Plan (Appendix C, Section 4 of the IHA
Application) and shall include the following:
(i) Dates and times of marine mammal observations;
(ii) Location of observations (description);
(iii) Construction activities occurring during each observation
period including any substantial change in construction activities;
(iv) Human activity in the area;
(v) Counts by species of pinnipeds, and if possible sex and age
class;
(vi) Number and type of marine mammal responses to disturbance; and
(vii) Apparent causes of marine mammal responses (e.g.,
construction project, aircraft, human activity, other pinniped, other
animal, swimmer/diver, watercraft, or other with a description).
(c) In the event that a fur seal, is observed on the rocks, beach,
or in the water prior to commencement of activities, the MMO shall
alert the stranding network and all activities shall be postponed until
coordination with the stranding network is complete (including any
potential 24-hour or 48-hour wait/observation period) and/or the animal
either leaves, or is collected by the stranding network.
(d) Acoustic recordings shall include the following:
(i) One location (at minimum) will be monitored close to the
construction site (near field) and adjacent to the edge of the bluff
overlooking Children's Pool. This will be a mobile station that will
move based on the actual location of construction activities;
(ii) If the loudest construction activities are more than 15 m (49
ft) from the edge of the bluff, acoustic data also will be recorded at
an additional near-field location closer to the construction/demolition
activities;
(iii) Three fixed monitoring stations will be established parallel
to the guideline rope (far-field);
(iv) If SPLs of 90 dB rms or greater are measured at any far-field
monitoring station, additional monitoring will be conducted to
determine the far-field extent of the 90 dB isopleth, and 100 dB
isopleth, as applicable; and
(v) Acoustic monitor shall record time of observations,
environmental conditions, and SPLs at applicable monitoring stations 30
minutes prior to the start of demolition/construction, every hour
during demolition/construction, and 30 minutes after cessation of
demolition/construction activities.
(e) At the start of each new phase of construction, a full day of
acoustic monitoring shall occur. The number of days of monitoring
required after the first full day of monitoring for each new
construction phase shall depend on results of acoustic monitoring, as
follows:
(i) If acoustic monitoring on the first day of a new phase of
construction documents sound levels of 90 dB rms or greater at any far-
field location, daily monitoring shall be required throughout that
phase of construction;
(ii) If acoustic monitoring on the first day of a new phase of
construction documents sound levels of 90 dB rms or greater at the
near-field location, but not at any far-field location, then a minimum
of two additional days of monitoring shall be required to confirm far-
field sound levels remain less than 90 dB rms for construction phase
durations of less than 4 weeks. Acoustic monitoring shall be conducted
weekly to confirm far-field sound levels remain less than 90 dB rms for
construction phase durations of greater than 4 weeks. If during the
additional monitoring, sound levels of 90 dB or greater are recorded at
any far-field location, then daily monitoring shall be required until
the end of that construction phase; and
(iii) If Acoustic monitoring on the first day of a new phase of
construction documents sound levels of less than 90 dB rms at the near-
field location(s), then one additional day of monitoring shall be
conducted to confirm near-field sound levels remain less than 90 dB
rms. If a sound level of greater than 90 dB rms is measured at the
near-field location on the second day of monitoring, additional days of
monitoring shall be conducted consistent with the specification listed
under item 4(d)(ii).
5. Reporting
The holder of this Authorization is required to:
(a) Submit a draft report on all monitoring conducted under the IHA
within 90 calendar days of the completion of marine mammal and acoustic
monitoring or sixty days prior to the issuance of any subsequent IHA
for this project, whichever comes first;
(b) Submit a final report within 30 days following resolution of
comments on the draft report from NMFS. This report must contain the
informational elements described in the Monitoring Plan at minimum, and
shall also include:
(i) Results of the marine mammal monitoring plan including the
elements described in 4(b); and
(ii) Results of acoustic monitoring as described in the Monitoring
Plan.
(c) Reporting injured or dead marine mammals:
(i) In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by this IHA,
such as injury or mortality, the City will immediately cease the
specified activities and report the incident to the Office of Protected
Resources, NMFS, and the West Coast Regional Stranding Coordinator,
NMFS. The report must include the following information:
1. Time and date of the incident;
2. Description of the incident;
3. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, and visibility);
4. Description of all marine mammal observations and active sound
source use in the 24 hours preceding the incident;
5. Species identification or description of the animal(s) involved;
6. Fate of the animal(s); and
7. Photographs or video footage of the animal(s).
Activities shall not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS will work with the City to
determine what measures are necessary to minimize the likelihood of
further prohibited take and ensure MMPA compliance. The City may not
resume their activities until notified by NMFS.
(ii) In the event that the City discovers an injured or dead marine
mammal, and the MMO determines that the cause of the injury or death is
unknown and the death is relatively recent (e.g., in less than a
moderate state of decomposition), the City will immediately report the
incident to the Office of Protected Resources, NMFS, and the West Coast
Regional Stranding Coordinator, NMFS.
The report must include the same information identified in 5(c)(i)
of this IHA. Activities may continue while NMFS reviews the
circumstances of the incident. NMFS will work with the City to
determine whether additional mitigation measures or modifications to
the activities are appropriate.
(iii) In the event that the City discovers an injured or dead
marine mammal, and the MMO determines that the injury or death is not
associated with or related to the activities authorized in the IHA
(e.g., previously wounded animal, carcass with moderate to advanced
decomposition, or scavenger damage), the City will report the incident
to the Office of Protected
[[Page 19237]]
Resources, NMFS, and the West Coast Regional Stranding Coordinator,
NMFS, within 24 hours of the discovery. The City will provide
photographs or video footage or other documentation of the stranded
animal sighting to NMFS.
This Authorization may be modified, suspended or withdrawn if the
holder fails to abide by the conditions prescribed herein, or if NMFS
determines the authorized taking is having more than a negligible
impact on the species or stock of affected marine mammals.
Request for Public Comments
We request comment on our analyses, the draft authorization, and
any other aspect of this Notice of Proposed IHA for the proposed
demolition and construction at Coast Boulevard, La Jolla, California.
Please include with your comments any supporting data or literature
citations to help inform our final decision on the request for MMPA
authorization.
Dated: April 18, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2017-08402 Filed 4-25-17; 8:45 am]
BILLING CODE 3510-22-P
