Notice2021-14980
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Army Corps of Engineers Debris Dock Replacement Project, Sausalito, California
Primary source
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Published
July 14, 2021
Effective
September 1, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the U.S. Army Corps of Engineers (ACOE) to incidentally harass, by Level A and Level B harassment only, marine mammals during construction activities associated with the Debris Dock Replacement Project in Sausalito, California.
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<title>Federal Register, Volume 86 Issue 132 (Wednesday, July 14, 2021)</title>
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[Federal Register Volume 86, Number 132 (Wednesday, July 14, 2021)]
[Notices]
[Pages 37124-37133]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-14980]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB208]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Army Corps of Engineers Debris Dock
Replacement Project, Sausalito, California
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
the U.S. Army Corps of Engineers (ACOE) to incidentally harass, by
Level A and Level B harassment only, marine mammals during construction
activities associated with the Debris Dock Replacement Project in
Sausalito, California.
DATES: This authorization is effective from September 1, 2021 through
August 31, 2022.
FOR FURTHER INFORMATION CONTACT: Dwayne Meadows, Ph.D., 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: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) 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 incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth.
The definitions of all applicable MMPA statutory terms cited above
are included in the relevant sections below.
Summary of Request
On March 17, 2021, NMFS received an application from ACOE
requesting an IHA to take small numbers of seven species of marine
mammals incidental to pile driving associated with the Debris Dock
Replacement Project. The application was deemed adequate and complete
on May 20, 2021. The ACOE's request is for take of a small number of
these species by Level A or Level B harassment. Neither the ACOE nor
NMFS expects serious injury or mortality to result from this activity
and, therefore, an IHA is appropriate.
Description of the Specified Activity
Overview
The purpose of the project is to replace the existing decaying dock
and other onshore infrastructure used to move marine debris collected
from San Francisco Bay onto land for disposal. The existing dock will
be removed and replaced. The work will involve impact hammering 31 24-
inch diameter concrete deck support piles and 17 14-inch diameter
timber fender piles for the replacement dock and removal of the decayed
dock by cutting or otherwise removing 31 18-inch diameter concrete deck
support piles and 17 14-inch diameter timber fender piles. The ACOE
recently informed us that three of the 24-inch diameter concrete piles
may be replaced with 18-inch diameter concrete piles, but we analyzed
the more conservative case of all 24-inch diameter concrete piles. This
construction work will take no more than 26 days of in-water pile work.
A detailed description of the planned project is provided in the
Federal Register notice for the proposed IHA (86 FR 28768; May 28,
2021). Since that time, no changes have been made to the planned
activities. Therefore, a detailed description is not provided here.
Please refer to that Federal Register notice for the description of the
specific activity.
The pile driving/removal can result in take of marine mammals from
sound in the water which results in behavioral harassment or auditory
injury.
In summary, the project period includes 10 days of pile removal and
16 days of pile installation activities for which incidental take
authorization is requested.
Table 1--Summary of Pile Driving and Removal Activities
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Number of Minutes/strikes Duration
Method Pile type piles per pile Piles per day (days)
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Cutting...................... 18-inch concrete 31 5 min.......... 10 7
Cutting...................... 14-inch timber.. 17 5 min.......... 10 3
Impact Driving............... 24-inch concrete 31 1,000 strikes.. 10 10
[[Page 37125]]
Impact Driving............... 14-inch timber.. 17 1,000 strikes.. 10 6
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Totals................... ................ 96 ............... .............. 26
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Mitigation, monitoring, and reporting measures are described in
detail later in this document (please see Mitigation and Monitoring and
Reporting).
Comments and Responses
A notice of NMFS's proposal to issue an IHA to the ACOE was
published in the Federal Register on May 28, 2021 (86 FR 28768). That
notice described, in detail, the ACOE's activity, the marine mammal
species that may be affected by the activity, and the anticipated
effects on marine mammals. During the 30-day public comment period,
NMFS received public comment from one commenter. The U.S. Geological
Survey noted they have ``no comment at this time''.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history, of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species with expected potential for occurrence in
the project area in San Francisco Bay and summarizes information
related to the population or stock, including regulatory status under
the MMPA and Endangered Species Act (ESA) and potential biological
removal (PBR), where known. For taxonomy, we follow Committee on
Taxonomy (2020). PBR is 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 (as described in NMFS's SARs). While no
mortality is anticipated or authorized here, PBR and annual serious
injury and mortality from anthropogenic sources are included here as
gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey 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. All managed stocks in this region are assessed in
NMFS's U.S. Pacific SARs and draft SARs (e.g., Caretta et al., 2020a
and b).
Table 2--Species That Spatially Co-Occur With the Activity to the Degree That Take Is Reasonably Likely To Occur
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ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
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Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Eschrichtiidae:
Gray Whale...................... Eschrichtius robustus.. Eastern North Pacific.. -, -, N 26,960 (0.05, 25,849, 801 138
2016).
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Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
Bottlenose Dolphin.............. Tursiops truncatus..... California Coastal..... -, -, N 453 (0.06, 346, 2011). 2.7 >2.0
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... San Francisco/Russian -, -, N 9,886 (0.51, 2019).... 66 0
River.
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Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals and
sea lions):
California Sea Lion............. Zalophus californianus. United States.......... -, -, N 257,606 (N/A, 233,515, 14,011 >321
2014).
Northern fur seal............... Callorhinus ursinus.... California............. -, D, N 14,050 (N/A, 7,524, 451 1.8
2013).
Eastern North Pacific.. -, D, N 620,660 (0.2, 525,333, 11,295 399
2016).
Family Phocidae (earless seals):
Northern elephant seal.......... Mirounga angustirostris California Breeding.... -, -, N 179,000 (N/A, 81,368, 4,882 8.8
2010).
[[Page 37126]]
Harbor seal..................... Phoca vitulina......... California............. -, -, N 30,968 (N/A, 27,348, 1,641 43
2012).
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\1\--Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR 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: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\--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). Annual Mortality/Serious Injury (M/SI) often cannot be determined precisely and is in some cases presented as a
minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
Harbor seal, California sea lion, bottlenose dolphin and Harbor
porpoise spatially co-occur with the activity to the degree that take
is reasonably likely to occur, and we have proposed authorizing take of
these species. For gray whale, northern fur seal and northern elephant
seal, occurrence is such that take is possible, and we have proposed
authorizing take of these species also.
A detailed description of the of the species likely to be affected
by the project, including brief introductions to the species and
relevant stocks as well as available information regarding population
trends and threats, and information regarding local occurrence, were
provided in the Federal Register notice for the proposed IHA (86 FR
28768; May 28, 2021); since that time, we are not aware of any changes
in the status of these species and stocks; therefore, detailed
descriptions are not provided here. Please refer to that Federal
Register notice for these descriptions. Please also refer to NMFS'
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for generalized
species accounts.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from the ACOE's construction
activities have the potential to result in behavioral harassment of
marine mammals in the vicinity of the survey area. The notice of
proposed IHA (86 FR 28768; May 28, 2021) included a discussion of the
effects of anthropogenic noise on marine mammals and the potential
effects of underwater noise from the ACOE's construction on marine
mammals and their habitat. That information and analysis is
incorporated by reference into this final IHA determination and is not
repeated here; please refer to the notice of proposed IHA (86 FR 28768;
May 28, 2021).
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through this IHA, which will inform both NMFS' consideration
of ``small numbers'' 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).
Authorized takes would primarily be by Level B harassment, as use
of the acoustic source (i.e., vibratory or impact pile driving) has the
potential to result in disruption of behavioral patterns for individual
marine mammals. There is also some potential for auditory injury (Level
A harassment) to result for pinnipeds and harbor porpoise because
predicted auditory injury zones are larger. The mitigation and
monitoring measures are expected to minimize the severity of the taking
to the extent practicable.
As described previously, no mortality is anticipated or authorized
for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which marine mammals will be behaviorally harassed or
incur some degree of permanent hearing impairment; (2) the area or
volume of water that will be ensonified above these levels in a day;
(3) the density or occurrence of marine mammals within these ensonified
areas; and, (4) and the number of days of activities. We note that
while these basic factors can contribute to a basic calculation to
provide an initial prediction of takes, additional information that can
qualitatively inform take estimates is also sometimes available (e.g.,
previous monitoring results or average group size). Due to the lack of
marine mammal density, NMFS relied on local occurrence data and group
size to estimate take for some species. Below, we describe the factors
considered here in more detail and present the proposed take estimate.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment for non-explosive sources--Though significantly
driven by received level, the onset of behavioral disturbance from
anthropogenic noise exposure is also informed to varying degrees by
other factors related to the source (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al., 2007,
Ellison et al., 2012). Based on what the available science indicates
and the practical need to use a threshold based on a factor that is
both predictable and measurable for most activities, NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals are
likely to be behaviorally harassed in a manner we consider Level B
harassment when exposed to underwater anthropogenic noise above
[[Page 37127]]
received levels of 120 dB re 1 microPascal ([mu]Pa) (root mean square
(rms)) for continuous (e.g., vibratory pile-driving) and above 160 dB
re 1 [mu]Pa (rms) for non-explosive impulsive (e.g., impact pile
driving) or intermittent (e.g., scientific sonar) sources.
The ACOE's proposed activity includes the use of continuous
(underwater chainsaw and pile clippers) and impulsive (impact pile-
driving) sources, and therefore the 120 and 160 dB re 1 [mu]Pa (rms)
thresholds are applicable.
Level A harassment for non-explosive sources--NMFS' Technical
Guidance for Assessing the Effects of Anthropogenic Sound on Marine
Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual
criteria to assess auditory injury (Level A harassment) to five
different marine mammal groups (based on hearing sensitivity) as a
result of exposure to noise from two different types of sources
(impulsive or non-impulsive). The ACOE's activity includes the use of
impulsive (impact pile-driving) and non-impulsive (pile cutting
methods) sources.
These thresholds are provided in Table 3. The references, analysis,
and methodology used in the development of the thresholds are described
in NMFS 2018 Technical Guidance, which may be accessed at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Table 3--Thresholds Identifying the Onset of Permanent Threshold Shift
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PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
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Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
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* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [mu]Pa, and cumulative sound exposure level (LE) has
a reference value of 1[mu]Pa\2\s. In this Table, thresholds are abbreviated to reflect American National
Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating
frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ``flat'' is
being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized
hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the
designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and
that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be
exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it
is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.
The sound field in the project area is the existing background
noise plus additional construction noise from the proposed project.
Marine mammals are expected to be affected via sound generated by the
primary components of the project (i.e., impact pile driving, pile
clippers and underwater chainsaws).
In order to calculate distances to the Level A harassment and Level
B harassment sound thresholds for the methods and piles being used in
this project, NMFS used acoustic monitoring data from other locations
to develop source levels for the various pile types, sizes and methods
(see Table 4). Data for the pile clippers and underwater chainsaws come
from data gathered at U.S. Navy projects in San Diego Bay (NAVFAC SW,
2020), the source levels used are from the averages of the maximum
source levels measured, a somewhat more conservative measure than the
median sound levels we typically use. The source level for an
underwater chainsaw is 150 db RMS and the source level for a large pile
clipper is 161 dB RMS (NAVFAC SW, 2020). Because the ACOE's as yet
unhired contractor has not decided which of the various pile removal
methods it will use, we only use a worst-case scenario of operation
using the loudest sound producing method (large pile clippers) to
consider the largest possible harassment zones and estimated take.
Table 4--Project Sound Source Levels
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Method Pile type Estimated noise level Source
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Cutting............................ 18-inch concrete...... 161 dB RMS............ NAVFAC SW 2020.
Cutting............................ 14-inch timber........ 161 dB RMS............ NAVFAC SW 2020.
Impact Driving..................... 24-inch concrete...... 159 dB SEL; 184 dB Illingworth and Rodkin,
Peak. Inc., 2019.
Impact Driving..................... 14-inch timber........ 155 dB SEL; 175 dB Table I.2-3 (CalTrans
Peak. 2015).
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Note: SEL = single strike sound exposure level; dB Peak = peak sound level; RMS = root mean square. Impact
driving source levels reduced by 5 dB to account for use of bubble curtain.
Level B Harassment Zones
Transmission loss (TL) is the decrease in acoustic intensity as an
acoustic pressure wave propagates out from a source. TL parameters vary
with frequency, temperature, sea conditions, current, source and
receiver depth, water depth, water chemistry, and bottom composition
and topography. The general formula for underwater TL is:
TL = B * Log10 (R1/R2)
[[Page 37128]]
where:
TL = transmission loss in dB
B = transmission loss coefficient; for practical spreading equals 15
R1 = the distance of the modeled SPL from the driven pile, and
R2 = the distance from the driven pile of the initial measurement
The recommended TL coefficient for most nearshore environments is
the practical spreading value of 15. This value results in an expected
propagation environment that would lie between spherical and
cylindrical spreading loss conditions, which is the most appropriate
assumption for the ACOE's proposed activity in the absence of specific
modelling.
The ACOE determined underwater noise would fall below the
behavioral effects threshold of 160 dB RMS for impact driving at 22 m
and the 120 dB rms threshold for pile cutting at 5,412 m. It should be
noted that based on the bathymetry and geography of San Francisco Bay,
sound will not reach the full distance of the Level B harassment
isopleths in all directions.
Level A Harassment Zones
When the NMFS Technical Guidance (2016) was published, in
recognition of the fact that ensonified area/volume could be more
technically challenging to predict because of the duration component in
the new thresholds, we developed a User Spreadsheet that includes tools
to help predict a simple isopleth that can be used in conjunction with
marine mammal density or occurrence to help predict takes. We note that
because of some of the assumptions included in the methods used for
these tools, we anticipate that isopleths produced are typically going
to be overestimates of some degree, which may result in some degree of
overestimate of take by Level A harassment. However, these tools offer
the best way to predict appropriate isopleths when more sophisticated
3D modeling methods are not available, and NMFS continues to develop
ways to quantitatively refine these tools, and will qualitatively
address the output where appropriate. For stationary sources such as
impact pile driving or removal using any of the methods discussed
above, NMFS User Spreadsheet predicts the closest distance at which, if
a marine mammal remained at that distance the whole duration of the
activity, it would not incur PTS. We used the User Spreadsheet to
determine the Level A harassment isopleths. Inputs used in the User
Spreadsheet or models are reported in Table 1 and the resulting
isopleths are reported in Table 5 for each of the construction methods
and pile types.
Table 5--Level A and Level B Isopleths (meters) for Each Pile Type and Method
--------------------------------------------------------------------------------------------------------------------------------------------------------
High-
Method Pile type Low- frequency Mid- frequency frequency Phocids Otariids Level B
cetaceans cetaceans cetaceans
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cutting........................... 18-inch concrete.... 6 0.5 8.9 3.7 0.3 5412
Cutting........................... 14-inch timber...... 6 0.5 8.9 3.7 0.3 5412
Impact Driving.................... 24-inch concrete.... 116.4 4.1 138.7 62.3 4.5 22
Impact Driving.................... 14-inch timber...... 63 2.2 75.1 33.7 2.5 22
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Marine Mammal Occurrence and Take Calculation and Estimation
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations. Here we describe how the information provided above is
brought together to produce a quantitative take estimate.
Bottlenose Dolphin
Density data for this species in the project vicinity do not exist.
San Francisco Oakland Bay Bridge (SFOBB) project monitoring showed two
observations of this species over 6 days of monitoring in 2017
(CalTrans 2018). One common bottlenose dolphin is sighted with
regularity near Alameda (GGCR 2016). Based on the regularity of the
sighting in Alameda and the SFOBB observations of approximately 0.33
dolphin a day, we authorize the Level B harassment take equivalent to
0.33 dolphins per day for the 26 proposed days of the project, or 9
common bottlenose dolphin (Table 6). Because the Level A harassment
zones are relatively small and we believe the Protected Species
Observer (PSO) will be able to effectively monitor the Level A
harassment zones, we do not authorize take by Level A harassment of
bottlenose dolphins.
Harbor Porpoise
Density data for this species from SFOBB monitoring was 0.17/km\2\
(CalTrans 2018). Based on the different pile types and methods there
are three different sized ensonified areas to be considered to estimate
Level B harassment take (Table 8). Multiplication of the above density
times the corresponding ensonified area and duration, summing the
results for the three methods, and subtracting the overlap of Level A
take (below) to avoid double-counting of take, leads to authorized
Level B harassment take of 21 harbor porpoise (Table 6).
Similarly, calculating expected Level A harassment take as density
times the corresponding Level A harassment ensonified area and duration
for each method results in an estimate that less than one harbor
porpoise may enter a Level A harassment zone during the project (see
Table 14 of application). Given the relatively high density and larger
size of the Level A isopleths for harbor porpoises (Table 5, high-
frequency cetaceans) we consider Level A harassment take is a
possibility. However, we recognize that harbor porpoises travel in
groups of up to 10 individuals and can be quick and somewhat cryptic,
so there is potential that underwater mammals may go undetected before
spotted in the Level A harassment and shutdown zone. Based on this
observation we authorize Level A harassment take of 2 harbor porpoise.
California Sea Lion
Density data for this species from SFOBB monitoring was 0.16/km\2\
(CalTrans 2018). Based on the different pile types and methods there
are three different sized ensonified areas to be considered to estimate
Level B harassment take (Table 7). Multiplication of the above density
times the corresponding ensonified area and duration, and summing the
results for the three methods, and subtracting the overlap of Level A
take (below) to avoid double-counting of take, leads to authorized
Level B harassment take of 20 California sea lions (Table 6).
Similarly, calculating expected Level A harassment take as density
times the corresponding Level A harassment ensonified area and duration
for each method results in an estimate that less than one California
sea lion will enter a Level A harassment zone (see Table 13
[[Page 37129]]
of application). Given the relatively high density and behavior of
California sea lions we consider Level A harassment take is a
possibility. Based on this observation we authorize Level A harassment
take of 2 California sea lions.
Northern Fur Seal
Density data for this species in the project vicinity do not exit.
SFOBB monitoring showed no observations of this species (CalTrans
2018). None were observed for the Treasure Island Ferry Dock project in
2019 (Matt Osowski, personal communication). The Marine Mammal Center
rescues about five northern fur seals in a year, and they occasionally
rescue them from Yerba Buena Island and Treasure Island (TMMC, 2019).
To be conservative we authorize Level B harassment take of three
northern fur seals. Because the Level A harassment zones are relatively
small and we believe the Protected Species Observer (PSO) will be able
to effectively monitor the Level A harassment zones, and the species is
rare, we do not authorize take by Level A harassment of northern fur
seals.
Northern Elephant Seal
Density data for this species in the project vicinity do not exist.
SFOBB monitoring showed no observations of this species (CalTrans
2018). None were observed for the Treasure Island Ferry Dock project in
2019 (Matt Osowski, personal communication). Out of the approximately
100 annual northern elephant seal strandings in San Francisco Bay,
approximately 10 individuals strand nearby at Yerba Buena or Treasure
Islands each year (TMMC, 2020). Therefore, we authorize the Level B
harassment take of 5 northern elephant seals. Because the Level A
harassment zones are relatively small and we believe the PSO will be
able to effectively monitor the Level A harassment zones, and the
species is rare, we do not authorize take by Level A harassment of
northern elephant seals.
Harbor Seal
Density data for this species from SFOBB monitoring was 3.92/km\2\
(CalTrans 2018). Based on the different pile types and methods there
are three different sized ensonified areas to be considered to estimate
Level B harassment take (Table 7). Multiplication of the above density
times the corresponding ensonified area and duration, summing the
results for the three methods, and subtracting the overlap of Level A
take (below) to avoid double-counting of take, leads to authorized
Level B harassment take of 527 harbor seals (Table 6).
Similarly, calculating expected Level A harassment take as density
times the corresponding Level A harassment ensonified area and duration
for each method results in an estimate that less than one harbor seal
may enter a Level A harassment zone during the project (see Table 12 of
application). Given the relatively high density and size of the Level A
isopleths for harbor seals (Table 5, phocid pinnipeds) we consider
Level A harassment take is a possibility. We recognize that harbor
seals can occur in moderate and rarely large size groups and can be
quick and somewhat cryptic, so there is potential that underwater
mammals may go undetected before spotted in the Level A harassment and
shutdown zone. Based on this observation we authorize Level A
harassment take of 2 harbor seals.
Gray Whale
Density data for this species in the project vicinity do not exist.
SFOBB monitoring showed no observations of this species (CalTrans
2018). None were observed for the Treasure Island Ferry Dock project in
2019 (Matt Osowski, personal communication). Approximately 12 gray
whales were stranded in San Francisco Bay from January to May of 2019
(TMMC, 2019) and four stranded in the vicinity on one week in 2021
(<a href="https://www.washingtonpost.com/science/2021/04/11/whales-sf-bay-beaches/">https://www.washingtonpost.com/science/2021/04/11/whales-sf-bay-beaches/</a>). Because recent observations are not well understood,
Sausalito sits near the entrance to the bay, and as a conservative
measure, we authorize Level B harassment take of 2 gray whales. Because
the Level A harassment zones are relatively small and we believe the
PSO will be able to effectively monitor the Level A harassment zones,
and the species is rare, we do not authorize take by Level A harassment
of gray whales.
Table 6--Authorized Amount of Taking, by Level A Harassment and Level B Harassment, by Species and Stock and
Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
Level A Level B Percent of
Common name Scientific name Stock harassment harassment stock
----------------------------------------------------------------------------------------------------------------
Harbor seal.................. (Phoca vitulina) California 2 527 1.7
Stock.
Harbor porpoise.............. (Phocoena San Francisco-- 2 21 0.3
phocoena). Russian River
Stock.
California sea lion.......... (Zalophus U.S. Stock..... 2 20 <0.1
californianus).
Gray whale................... (Eschrichtius Eastern North 0 2 <0.1
robustus). Pacific Stock.
Bottlenose dolphin........... (Tursiops California 0 9 2
truncatus). Coastal Stock.
Northern elephant seal....... (Mirounga California 0 5 <0.1
angustirostris). Breeding Stock.
Northern fur seal............ (Callorhinus California and 0 3 <0.1
ursinus). Eastern North
Pacific Stocks.
----------------------------------------------------------------------------------------------------------------
Table 7--Calculations To Estimate Level B Harassment Take
----------------------------------------------------------------------------------------------------------------
Harbor
Harbor Seal Sea Lion Porpoise
----------------------------------------------------------------------------------------------------------------
SFOBB Species density (animals/square kilometer (km\2\))........ 3.96 0.16 0.17
Days of Pile Driving/Cutting
24-inch Concrete............................................ 10 10 10
14-inch Timber.............................................. 6 6 6
Pile Cutting................................................ 10 10 10
Area of Isopleth in km\2\
24-inch Concrete............................................ 0.00151 0.00151 0.00151
14-inch Timber.............................................. 0.00151 0.00151 0.00151
[[Page 37130]]
Pile Cutting................................................ 13.3456 13.3456 13.3456
Per day take Level B
24-inch Concrete............................................ 0.006 0.0002 0.0003
14-inch Timber.............................................. 0.006 0.0002 0.0003
Pile Cutting................................................ 52.8486 2.1353 2.2688
-----------------------------------------------
Total Level B Take Calculated........................... 528.58 21.36 22.69
Total Level B Take Estimated............................ 529 22 23
----------------------------------------------------------------------------------------------------------------
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 the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the 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 the
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 adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider 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.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); 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.
The following mitigation measures are in the IHA:
<bullet> Avoid direct physical interaction with marine mammals
during construction activity. If a marine mammal comes within 10 m of
such activity, operations must cease and vessels must reduce speed to
the minimum level required to maintain steerage and safe working
conditions;
<bullet> Conduct training between construction supervisors and
crews and the marine mammal monitoring team and relevant ACOE staff
prior to the start of all pile driving activity and when new personnel
join the work, so that responsibilities, communication procedures,
monitoring protocols, and operational procedures are clearly
understood;
<bullet> Pile driving activity must be halted upon observation of
either a species for which incidental take is not authorized or a
species for which incidental take has been authorized but the
authorized number of takes has been met, entering or within the
harassment zone;
<bullet> The ACOE will establish and implement the shutdown zones
indicated in Table 9. The purpose of a shutdown zone is generally to
define an area within which shutdown of the activity would occur upon
sighting of a marine mammal (or in anticipation of an animal entering
the defined area). Shutdown zones typically vary based on the activity
type and marine mammal hearing group. The ACOE wishes to simplify
implementation of the relatively small shutdown zones and has proposed
using a single shutdown zone distance for each activity rather than
separate zones for each hearing group as we minimally require
typically. Therefore the shutdown zones in Table 8 are based on the
largest possible Level A harassment zones calculated from the isopleths
in Table 6.
<bullet> Employ PSOs and establish monitoring locations as
described in the application and Section 5 of the IHA. The Holder must
monitor the project area to the maximum extent possible based on the
required number of PSOs, required monitoring locations, and
environmental conditions for all pile driving and removal one PSO must
be used. The PSO will be stationed as close to the activity as
possible;
<bullet> The placement of the PSO during all pile driving and
removal and drilling activities will ensure that the entire shutdown
zone is visible during pile installation. Should environmental
conditions deteriorate such that marine mammals within the entire
shutdown zone will not be visible (e.g., fog, heavy rain), pile driving
and removal must be delayed until the PSO is confident marine mammals
within the shutdown zone could be detected;
<bullet> Monitoring must take place from 30 minutes prior to
initiation of pile driving activity through 30 minutes post-completion
of pile driving activity. Pre-start clearance monitoring must be
conducted during periods of visibility sufficient for the lead PSO to
determine the shutdown zones clear of marine mammals. Pile driving may
commence following 30 minutes of observation when the determination is
made;
<bullet> If pile driving is delayed or halted due to the presence
of a marine mammal, the activity may not commence or resume until
either the animal has voluntarily exited and been visually confirmed
beyond the shutdown zone or 15 minutes have passed without re-detection
of the animal;
<bullet> The ACOE must use soft start techniques when impact pile
driving. Soft start requires contractors to provide an initial set of
three strikes at reduced energy, followed by a 30-second waiting
period, then two subsequent reduced-energy strike sets. A soft start
must be implemented at the start of each day's impact pile driving and
at any time following cessation of impact pile driving for a period of
30 minutes or longer;
<bullet> Use a bubble curtain during impact pile driving and ensure
that it is operated as necessary to achieve optimal performance, and
that no reduction in performance may be
[[Page 37131]]
attributable to faulty deployment. At a minimum, the ACOE must adhere
to the following performance standards: The bubble curtain must
distribute air bubbles around 100 percent of the piling circumference
for the full depth of the water column. The lowest bubble ring must be
in contact with the substrate for the full circumference of the ring,
and the weights attached to the bottom ring shall ensure 100 percent
substrate contact. No parts of the ring or other objects shall prevent
full substrate contact. Air flow to the bubblers must be balanced
around the circumference of the pile.
Table 8--Shutdown Zones (Meters) for Each Pile Type and Method
------------------------------------------------------------------------
Pile size, type, and method Shutdown zone
------------------------------------------------------------------------
24-inch concrete, impact................................ 140
14-inch timber, impact.................................. 80
14 and 18-inch pile cutting............................. 10
------------------------------------------------------------------------
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has determined that the
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.
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:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> 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);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
Visual Monitoring
<bullet> Monitoring must be conducted by qualified, NMFS-approved
PSOs, in accordance with the following: PSOs must be independent (i.e.,
not construction personnel) and have no other assigned tasks during
monitoring periods. At least one PSO must have prior experience
performing the duties of a PSO during construction activity pursuant to
a NMFS-issued incidental take authorization. Other PSOs may substitute
other relevant experience, education (degree in biological science or
related field), or training. PSOs must be approved by NMFS prior to
beginning any activity subject to this IHA.
<bullet> PSOs must record all observations of marine mammals as
described in the Section 5 of the IHA, regardless of distance from the
pile being driven. PSOs shall document any behavioral reactions in
concert with distance from piles being driven or removed;
PSOs must have the following additional qualifications:
<bullet> Ability to conduct field observations and collect data
according to assigned protocols;
<bullet> Experience or training in the field identification of
marine mammals, including the identification of behaviors;
<bullet> Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
<bullet> Writing skills sufficient to prepare a report of
observations including but not limited to the number and species of
marine mammals observed; dates and times when in-water construction
activities were conducted; dates, times, and reason for implementation
of mitigation (or why mitigation was not implemented when required);
and marine mammal behavior; and
<bullet> 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;
<bullet> The ACOE must establish the following monitoring
locations. For all pile driving and cutting activities, a minimum of
one PSO must be assigned to the active pile driving or cutting location
to monitor the shutdown zones and as much of the Level B harassment
zones as possible.
Reporting
A draft marine mammal monitoring report will be submitted to NMFS
within 90 days after the completion of pile driving and removal
activities, or 60 days prior to a requested date of issuance of any
future IHAs for projects at the same location, whichever comes first.
The report will include an overall description of work completed, a
narrative regarding marine mammal sightings, and associated PSO data
sheets. Specifically, the report must include:
<bullet> Dates and times (begin and end) of all marine mammal
monitoring;
<bullet> Construction activities occurring during each daily
observation period, including the number and type of piles driven or
removed and by what method (i.e., impact or cutting) and the total
equipment duration for cutting for each pile or total number of strikes
for each pile (impact driving);
<bullet> PSO locations during marine mammal monitoring;
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including Beaufort sea state and any other relevant
weather conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance;
<bullet> Upon observation of a marine mammal, the following
information: Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting; Time of sighting; Identification of the
animal(s) (e.g., genus/species, lowest possible taxonomic level, or
unidentified), PSO confidence in
[[Page 37132]]
identification, and the composition of the group if there is a mix of
species; Distance and bearing of each marine mammal observed relative
to the pile being driven for each sighting (if pile driving was
occurring at time of sighting); Estimated number of animals (min/max/
best estimate); Estimated number of animals by cohort (adults,
juveniles, neonates, group composition, etc.); Animal's closest point
of approach and estimated time spent within the harassment zone;
Description of any marine mammal behavioral observations (e.g.,
observed behaviors such as feeding or traveling), including an
assessment of behavioral responses thought to have resulted from the
activity (e.g., no response or changes in behavioral state such as
ceasing feeding, changing direction, flushing, or breaching);
<bullet> Number of marine mammals detected within the harassment
zones, by species; and
<bullet> Detailed information about any implementation of any
mitigation triggered (e.g., shutdowns and delays), a description of
specific actions that ensued, and resulting changes in behavior of the
animal(s), if any.
If no comments are received from NMFS within 30 days, the draft
final report will constitute the final report. If comments are
received, a final report addressing NMFS comments must be submitted
within 30 days after receipt of comments.
Reporting Injured or Dead Marine Mammals
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, the IHA-holder must
immediately cease the specified activities and report the incident to
the Office of Protected Resources (OPR)
(<a href="/cdn-cgi/l/email-protection#6a3a3844233e3a44270504031e051803040d380f1a05181e192a04050b0b440d051c"><span class="__cf_email__" data-cfemail="2070720e6974700e6d4f4e49544f52494e477245504f525453604e4f41410e474f56">[email protected]</span></a>), NMFS and to West Coast Regional
Stranding Coordinator as soon as feasible. If the death or injury was
clearly caused by the specified activity, the ACOE must immediately
cease the specified activities until NMFS is able to review the
circumstances of the incident and determine what, if any, additional
measures are appropriate to ensure compliance with the terms of the
IHA. The IHA-holder must not resume their activities until notified by
NMFS. The report must include the following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
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).
Pile driving and removal activities have the potential to disturb
or displace marine mammals. Specifically, the project activities may
result in take, in the form of Level A and Level B harassment from
underwater sounds generated from pile driving and removal. Potential
takes could occur if individuals are present in the ensonified zone
when these activities are underway.
The takes from Level A and Level B harassment would be due to
potential behavioral disturbance, TTS, and PTS. No mortality is
anticipated given the nature of the activity and measures designed to
minimize the possibility of injury to marine mammals. The potential for
harassment is minimized through the construction method and the
implementation of the planned mitigation measures (see Mitigation
section).
The Level A harassment zones identified in Table 5 are based upon
an animal exposed to impact pile driving multiple piles per day.
Considering duration of impact driving each pile (up to 20 minutes) and
breaks between pile installations (to reset equipment and move pile
into place), this means an animal would have to remain within the area
estimated to be ensonified above the Level A harassment threshold for
multiple hours. This is highly unlikely given marine mammal movement
throughout the area. If an animal was exposed to accumulated sound
energy, the resulting PTS would likely be small (e.g., PTS onset) at
lower frequencies where pile driving energy is concentrated, and
unlikely to result in impacts to individual fitness, reproduction, or
survival.
The nature of the pile driving project precludes the likelihood of
serious injury or mortality. For all species and stocks, take would
occur within a limited, confined area (north-central San Francisco Bay
including Richardson's Bay) of the stock's range. Level A and Level B
harassment will be reduced to the level of least practicable adverse
impact through use of mitigation measures described herein. Further the
amount of take authorized is extremely small when compared to stock
abundance.
Behavioral responses of marine mammals to pile driving at the
project site, if any, are expected to be mild and temporary. Marine
mammals within the Level B harassment zone may not show any visual cues
they are disturbed by activities (as noted during modification to the
Kodiak Ferry Dock) or could become alert, avoid the area, leave the
area, or display other mild responses that are not observable such as
changes in vocalization patterns. Given the short duration of noise-
generating activities per day and that pile driving and removal would
occur across nine months, any harassment would be temporary. There are
no other areas or times of known biological importance for any of the
affected species.
In addition, it is unlikely that minor noise effects in a small,
localized area of habitat would have any effect on the stocks' ability
to recover. In combination, we believe that these factors, as well as
the available body of evidence from other similar activities,
demonstrate that the potential effects of the specified activities will
have only
[[Page 37133]]
minor, short-term effects on individuals. The specified activities are
not expected to impact rates of recruitment or survival and will
therefore not result in population-level impacts.
In summary and as described above, the following factors primarily
support our 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:
<bullet> No mortality is anticipated or authorized;
<bullet> Authorized Level A harassment would be very small amounts
and of low degree;
<bullet> No important habitat areas have been identified within the
project area;
<bullet> For all species, San Francisco Bay is a very small and
peripheral part of their range;
<bullet> The ACOE would implement mitigation measures such as
bubble curtains, soft-starts, and shut downs; and
<bullet> Monitoring reports from similar work in San Francisco Bay
have documented little to no effect on individuals of the same species
impacted by the specified activities.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the
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, where estimated numbers are
available, 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. When the predicted number of individuals to
be taken is fewer than one third of the species or stock abundance, the
take is considered to be of small numbers. Additionally, other
qualitative factors may be considered in the analysis, such as the
temporal or spatial scale of the activities.
The amount of take NMFS authorizes is below one third of the
estimated stock abundance of all species (in fact, take of individuals
is less than 10 percent of the abundance of the affected stocks, see
Table 6). This is likely a conservative estimate because they assume
all takes are of different individual animals which is likely not the
case. Some individuals may return multiple times in a day, but PSOs
would count them as separate takes if they cannot be individually
identified.
Based on the analysis contained herein of the proposed activity
(including the mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS 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
Section 7(a)(2) of the 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, in this
case with the West Coast Region Protected Resources Division Office,
whenever we propose to authorize take for endangered or threatened
species.
No incidental take of ESA-listed species is authorized 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.
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 (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) 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. Accordingly, NMFS has determined
that the issuance of the proposed IHA qualifies to be categorically
excluded from further NEPA review.
Authorization
NMFS has issued an IHA to the ACOE for the potential harassment of
small numbers of seven marine mammal species incidental to the Debris
Dock Replacement project in Sausalito, CA, provided the previously
mentioned mitigation, monitoring and reporting requirements are
followed.
Dated: July 8, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2021-14980 Filed 7-13-21; 8:45 am]
BILLING CODE 3510-22-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.