Notice2023-13751
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Phase II of the Richmond-San Rafael Bridge Restoration Project
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 28, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS has received a request from the California Department of Transportation (Caltrans) for authorization to take marine mammals incidental to Phase II of the Richmond-San Rafael Bridge Restoration Project in Richmond, CA. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-time, 1-year renewal that could be issued under certain circumstances and if all requirements are met, as described in Request for Public Comments at the end of this notice. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision.
Full Text
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<title>Federal Register, Volume 88 Issue 123 (Wednesday, June 28, 2023)</title>
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[Federal Register Volume 88, Number 123 (Wednesday, June 28, 2023)]
[Notices]
[Pages 41920-41928]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13751]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD056]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Phase II of the Richmond-San Rafael
Bridge Restoration Project
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed incidental harassment authorization; request
for comments on proposed authorization and possible renewal.
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SUMMARY: NMFS has received a request from the California Department of
Transportation (Caltrans) for authorization to take marine mammals
incidental to Phase II of the Richmond-San Rafael Bridge Restoration
Project in Richmond, CA. Pursuant to the Marine Mammal Protection Act
(MMPA), NMFS is requesting comments on its proposal to issue an
incidental harassment authorization (IHA) to incidentally take marine
mammals during the specified activities. NMFS is also requesting
comments on a possible one-time, 1-year renewal that could be issued
under certain circumstances and if all requirements are met, as
described in Request for Public Comments at the end of this notice.
NMFS will consider public comments prior to making any final decision
on the issuance of the requested MMPA authorization and agency
responses will be summarized in the final notice of our decision.
DATES: Comments and information must be received no later than July 28,
2023.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service and should be submitted via email to
<a href="/cdn-cgi/l/email-protection#5b120f0b7538343830293e37371b35343a3a753c342d"><span class="__cf_email__" data-cfemail="6d24393d430e020e061f0801012d03020c0c430a021b">[email protected]</span></a>.
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, including all attachments, must
not exceed a 25-megabyte file size. All comments received are a part of
the public record and will generally be posted online at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a> 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.
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/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>. In case of problems accessing these documents, please call
the contact listed below.
FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected
Resources, NMFS, (301) 427-8401.
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 proposed or, if the taking is limited to harassment, a notice of a
proposed IHA is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) 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.
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
preliminarily determined that the issuance of the proposed IHA
qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice
prior to concluding our NEPA process or making a final decision on the
IHA request.
Summary of Request
On December 28, 2022, NMFS received a request from Caltrans for an
IHA to take marine mammals incidental to construction activities to
restore portions of the Richmond-San Rafael Bridge. Following NMFS'
review of the application, Caltrans submitted a revised version on
April 14, 2023, which was deemed adequate and
[[Page 41921]]
complete on May 11, 2023. Caltrans' request is for take of harbor seals
(Phoca vitulina) by Level B harassment only. Neither Caltrans nor NMFS
expect serious injury or mortality to result from this activity and,
therefore, an IHA is appropriate.
Description of Proposed Activity
Overview
Caltrans would conduct construction activities to restore a portion
of the Richmond-San Rafael Bridge. Prior to restoration work Caltrans
would install a debris containment system to ensure contaminants from
construction are not deposited into San Francisco Bay. During the
deployment and retrieval of the containment system disturbance (i.e.,
Level B harassment) of harbor seals may occur. Once the debris
containment system is deployed the restoration work on the bridge is
not expected to result in any takes of marine mammals, as the
containment system is expected to shield seals from disturbance as a
result of visual and acoustic stimuli. Takes of harbor seals would
occur at the nearby Castro Rocks haulout. The Richmond-San Rafael
Bridge is located in the northern portion of San Francisco Bay and is
located between Richmond, CA and San Rafael, CA. The debris containment
system would be used on Piers 52-57 and the proposed action area is
approximately 3.5 square miles (9.2 square kilometers). Work on the
bridge would be conducted throughout the year once the debris
containment system is in place. The deployment and retrieval of the
containment system would only occur during between August 1 and March
30 to avoid pupping and molting seasons of harbor seals.
Dates and Duration
The proposed IHA would be effective from August 1, 2023 to March
30, 2024. It is expected that the debris containment system would take
up to 20 days to deploy and 10 days to remove (30 total days). The
debris containment system would only be deployed during daylight hours
but restoration work would occur throughout the day and night following
deployment.
Specific Geographic Region
Located in the northern reaches of San Francisco Bay, the eastern
portion of Richmond-San Rafael Bridge is surrounded by the industrial
complex of the Chevron Richmond Refinery. Castro Rocks is an important
haulout location for harbor seals in San Francisco Bay. The nearest
outcropping of Castro Rocks, where harbor seals are known to haulout,
is located approximately 21.3 meters (m) from Pier 55, and the farthest
outcropping is located approximately 145 m from Pier 52.
BILLING CODE 3510-22-P
[GRAPHIC] [TIFF OMITTED] TN28JN23.000
BILLING CODE 3510-22-C
[[Page 41922]]
Detailed Description of the Specified Activity
The restoration improvements to the Richmond-San Rafael Bridge
include sandblasting, cleaning, and painting of the upper and lower
deck and repair of the road deck and expansion joints on the lower
deck. To remove the existing paint from the bridge sandblasting and
rotary sanding would be completed using compressed air and power
sanders. Primer and paint would then be applied using a pneumatic paint
sprayer. All of the paint removal and painting work would rely on a
generator and an air compressor from a barge on the north side of the
bridge.
Localized spalled road deck concrete would be repaired and damaged
concrete will be removed using pneumatic air chisels. All exposed rebar
would be sandblasted prior to placement of new structural concrete in
the spalled area. Bridge joints would be replaced on the lower deck of
the bridge. Replacement of the bridge joints would involve concrete
saws to remove the old joint.
All of these activities have the potential to emit sound in the
vicinity of Castro Rocks. Although sound would be produced by the
construction activities, the deployment of a debris containment system
would attenuate the sound and block any visual disturbance from
reaching Castro Rocks. All construction activities would be conducted
within the debris containment system. As such, the deployment and
removal of the debris containment system is expected to be the only
activity that would result in takes of harbor seals hauled out at
Castro Rocks. The visibility of workers in the project area during the
installation and removal of the debris containment system would likely
cause behavioral reactions such as flushing from the haul-out, not
hauling out, head alerts, or moving farther from the disturbance to
forage.
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
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. NMFS
fully considered all of this information, and we refer the reader to
these descriptions in materials that are referenced in the document,
instead of reprinting the information. Additional information regarding
population trends and threats may be found in NMFS' Stock Assessment
Reports (SARs; <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">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' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 1 lists all species or stocks for which take is expected and
proposed to be authorized for this activity, 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. 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'
SARs). While no serious injury or mortality is anticipated or proposed
to be authorized here, PBR and annual serious injury and mortality from
anthropogenic sources are included here as gross indicators of the
status of the species or stocks 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' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. All managed stocks in this region are assessed in
NMFS' Pacific SARs, and NMFS has reviewed the most current information
for the species. All values presented in Table 1 are the most recent
available at the time of publication and are available online at:
<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>.
Table 1--Species Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 Carnivora--Pinnipedia
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Family Phocidae (earless seals):
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.nmfs.noaa.gov/pr/sars/">https://www.nmfs.noaa.gov/pr/sars/</a>. CV is coefficient of variation; Nmin is the minimum
estimate of stock abundance. In some cases, CV is not applicable.
\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 M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
As indicated above, harbor seals temporally and spatially co-occur
with the activity to the degree that take is reasonably likely to
occur. While California sea lions, Steller sea lions, northern elephant
seals, northern fur seals, harbor porpoise, bottlenose dolphins, gray
whales, and humpback whales have been documented in the area, the
temporal and/or spatial occurrence of these species is such that take
is not expected to occur, and they are not discussed further beyond the
explanation provided here. For pinnipeds in the aforementioned list,
there are no other documented haulouts close to the project area. Since
no in-water work is proposed there would be no effects on these species
potentially present in the water during this work. For the cetacean
species listed above, no take is expected for those species due to the
lack of in-water work planned for this project.
[[Page 41923]]
Harbor Seal
Pacific harbor seals are distributed from Baja California north to
the Aleutian Islands of Alaska. Seals primarily haulout on remote
mainland and island beaches, reefs, and estuary areas. At haulouts,
they will congregate to rest, socialize, breed, and molt. Haulouts are
relatively consistent from year to year (Kopec and Harvey, 1995), and
females have been documented to return to their own natal haulout when
breeding (Green et al., 2006).
The Pacific harbor seal population experienced an increase from
1981-2004, followed by a steady decrease from between 2005-2010. The
maximum statewide count showed that the California stock sharply
declined in 2009 and 2012 (Duncan 2019). Caltrans conducted extensive
marine mammal surveys in San Francisco Bay before and during seismic
retrofit on the Richmond-San Rafael Bridge from 1998-2002. Caltrans
determined that a minimum of 500 harbor seals occur within San
Francisco Bay (Green et al., 2002), an estimate that agrees with more
recent seal counts (Lowry et al., 2008; Codde et al., 2020). The
California harbor seal stock may be stabilizing at or near carrying
capacity, although conservation concerns such as vessel strikes,
disturbance, fishing gear entanglement, and habitat loss are still a
concern in the San Francisco Bay area (Duncan 2019).
The nearest major haulout site to the project area is Castro Rocks,
located approximately 21.3 meters from Pier 55 of the bridge, and the
farthest outcropping is located approximately 145 meters from Pier 52
of the bridge. Use of Castro Rocks as a haulout site has been
increasing over the years (Codde et al., 2020). Given the close
proximity of Castro Rocks to the project area it is likely seals would
be present on the rocks during construction. There are also smaller
numbers of harbor seals have also been reported to haulout on the
western Brother Island, approximately 3.35 kilometers to the north of
the bridge.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section provides a discussion of the ways in which components
of the specified activity may impact marine mammals and their habitat.
The Estimated Take of Marine Mammals section later in this document
includes a quantitative analysis of the number of individuals that are
expected to be taken by this activity. The Negligible Impact Analysis
and Determination section considers the content of this section, the
Estimated Take of Marine Mammals 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 whether those impacts are reasonably expected to, or reasonably
likely to, adversely affect the species or stock through effects on
annual rates of recruitment or survival.
The visual stimuli generated by the deployment and removal of the
debris containment system has the potential to cause Level B harassment
of pinnipeds hauled out at Castro Rocks. This section includes a
summary and discussion of the ways that the types of stressors
associated with the specified activity (personnel presence while
assembling the containment system) have been observed to impact marine
mammals.
The appearance of personnel may have the potential to cause Level B
harassment of any harbor seals hauled out at Castro Rocks during the
time of installation or removal of the debris containment system.
Disturbance may result in reactions from harbor seals ranging from
becoming alert to the presence of personnel (e.g., turning the head,
assuming a more upright posture) to flushing from the haulout site into
the water or not hauling out at all. NMFS does not consider the lesser
reactions to constitute behavioral harassment, or takes by Level B
harassment. NMFS rather assumes that harbor seals that flee some
distance or change the speed or direction of their movement in response
to the presence of personnel are behaviorally harassed, and thus
subject to take by Level B harassment. Animals that respond to the
presence of workers by becoming alert, but do not move or change the
nature of locomotion as described, are not considered to have been
subject to behavioral harassment.
There are other ways in which disturbance, as described previously,
could result in more than Level B harassment of marine mammals. They
are most likely to be consequences of stampeding, a potentially
dangerous occurrence in which large numbers of animals succumb to mass
panic and rush away from a stimulus. However, NMFS does not expect this
to occur at the project area. Caltrans will take precautions, such as
establishment of a non-disturbance buffer within 400 feet (121 meters)
of Castro Rocks on the south side of bridge, steering watercraft so as
not to approach marine mammal haulout sites, and a requirement that
watercraft maintain a slow steady speed when passing by Castro Rocks.
Furthermore, the debris containment system would be installed outside
of the pupping and molting season to ensure no impacts to pups at
Castro Rocks.
Monitoring efforts from a 2001 seismic retrofit project at the same
site found that on average there were 0.16 construction related
disturbance events (flushes) per hour of field time caused by
construction related disturbances during daytime monitoring at Castro
Rocks (Green et al., 2004). Construction-related disturbances at Castro
Rocks consisted of two main factors: watercraft in the area of the
haulout site and construction activities including jackhammering, rivet
work, and the movement of cranes on barges near the haulout site (Green
et al., 2004). Construction noise and activity from this project are
considerably less than the seismic retrofit project due to the lack of
jackhammering, rivet work and construction activities at water level.
Once the scaffolding and debris containment system is installed on the
lower bridge deck, the work area will be screened, and take by Level B
harassment due to ongoing construction activities inside the
containment system is not anticipated.
Given the nature of the proposed activities (i.e., installation and
removal of the debris containment system) in conjunction with proposed
mitigation measures, NMFS is confident that any anticipated effects
would be in the form of behavioral disturbance only. NMFS considers the
risk of injury, serious injury, or mortality to marine mammals to be
extremely unlikely.
There are no habitat modifications associated with the proposed
activity. The debris containment system, construction waste, or
watercraft (including barges) would not make contact with Castro Rocks.
Thus, NMFS does not expect that the proposed activity would have any
effects on marine mammal habitat and NMFS expects that there will be no
long- or short-term physical impacts to pinniped habitat on Castro
Rocks.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
proposed for authorization through this IHA, which will inform both
NMFS' consideration of ``small numbers,'' and the negligible impact
determinations.
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
[[Page 41924]]
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 be by Level B harassment only, in the form
of disruption of behavioral patterns for individual marine mammals
resulting from exposure to the novel stimulus of the installation and
removal of the debris containment system. Based on the nature of the
activity, Level A harassment is neither anticipated nor proposed to be
authorized.
As described previously, no serious injury or mortality is
anticipated or proposed to be authorized for this activity. Below, we
describe how the proposed take numbers are estimated.
Marine Mammal Occurrence and Take Estimates
In this section, we provide information about the occurrence of
marine mammals, including density or other relevant information, which
will inform the take calculations. We will also describe how this
information is brought together to produce a quantitative take estimate
for each species.
Castro Rocks is the largest harbor seal haulout site in northern
San Francisco Bay and is the second largest pupping site in San
Francisco Bay (Kopec and Harvey 1995). The harbor seal pupping season
is from April to July in San Francisco Bay. Seals are present on the
haulout year round during medium to low tides (Green et al., 2004).
Recent observations at the Castro Rocks haulout site reported
approximately 300 seals during the pupping and molting seasons (Codde
and Allen, 2020). The highest mean number of harbor seals observed at
Castro Rocks during recent annual National Park Service surveys was 237
seals observed in 2019 (Codde and Allen, 2013, 2015, 2017, 2020; Codde
2020).
Caltrans expects to harass approximately 300 harbor seals per day
during the instillation and removal of the debris containment system.
It is expected to take 30 days for Caltrans to complete this process.
Based on these assumptions Caltrans requested authorization of 9,000
takes by Level B harassment of harbor seals while hauled out. NMFS
concurs with this request.
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 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, NMFS
considers 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, and impact on
operations.
Mitigation for Marine Mammals and Their Habitat
Caltrans proposes to implement the following measures during Phase
II of the Richmond-San Rafael Bridge Restoration Project:
(1) Seasonal Work Restrictions: installation or removal of the
debris containment system must not occur between Piers 52-57 from April
1-July 31 due to the pupping and molting period of harbor seals.
(2) Work must not take place outside of the containment system on
the bridge between Piers 52-57 from April 1 to July 31.
(3) A non-disturbance buffer will be established within 400 feet
(121 meters) of Castro Rocks on the south side of bridge.
(4) Staging of barges will not be allowed in the project area.
(5) Routes for watercraft to reach work locations would be
predetermined in consultation with the project biologist to avoid
harassment or take of marine mammals hauled out at Castro Rocks.
(6) No piles may be driven or vibrated to create staging locations
for any watercraft. Barges and vessels would be tethered to the
existing concrete bridge piers.
Based on our evaluation of the applicant's proposed measures, NMFS
has preliminarily determined that the proposed mitigation measures
provide the means of 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 while
conducting the activities. 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 activity; 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;
[[Page 41925]]
<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.
Caltrans will monitor to collect data on marine mammal behavior,
counts of the individuals observed, and the frequency of the
observations. Caltrans will collect sighting data and observations on
behavioral responses to construction for marine mammal species observed
in the region of activity during the period of construction. All
observers will be trained in the identification of marine mammals and
marine mammal behaviors.
<bullet> Protected species observers (PSOs) must be independent
observers (i.e., not construction personnel). All PSOs must have the
ability to conduct field observations and collect data according to
assigned protocols, be experienced in field identification of marine
mammals and their behaviors. Caltrans must submit their resumes to NMFS
for approval;
<bullet> Biological monitoring must occur 5 days prior to the
Project's start date, to establish baseline observations.
<bullet> Observation periods will encompass different tide levels
and hours of the day. Monitoring of marine mammals around the
construction site will be conducted using binoculars as necessary.
<bullet> The proposed location of the PSOs will be at a monitoring
platform positioned on Pier 55 of the Richmond-San Rafael Bridge, at
the closest pier of the Richmond-San Rafael Bridge to Castro Rocks.
Pier 55 is approximately 21 meters from the nearest rock at Castro
Rocks harbor seal colony.
Data Collection
Caltrans will record detailed information about counts and
behaviors of all marine mammal species observed, times of observations,
construction activities that occurred, any visual disturbances, and
weather conditions, with particular focus on harbor seals at Castro
Rocks. PSOs will use approved data forms to record the following
information:
<bullet> Observation position and start and end times of
observations;
<bullet> Weather conditions (sunny/cloudy, wind speed, fog,
visibility), temperature, tide level, current, and sea state;
<bullet> Species counts (including with or without pup, and, if
possible, sex and age classes of any observed marine mammal species;
<bullet> Identifying marks or color (scars, red pelage, etc.);
<bullet> Position relative to Richmond-San Rafael bridge (distance
and direction);
<bullet> Movement (direction and relative speed);
<bullet> Behavior (logging (resting at the surface), swimming,
spyhopping (raising above the water surface to view the area),
foraging, etc.);
<bullet> Duration of sighting or times of multiple sightings of the
same individual; and
<bullet> Details of any marine mammal behavioral disturbances,
including information regarding the activity (e.g. disturbance from the
containment system installation and removal or construction related
disturbance within or outside the containment system), the type of
behavioral response to the disturbance (flushing or head posturing),
and the rate of disturbance on Castro Rocks. Disturbance events must be
categorized according to the 3-point scale as shown in Table 2.
Table 2--Levels of Pinniped Behavioral Disturbance
------------------------------------------------------------------------
Level Type of 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 in response
to 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.
------------------------------------------------------------------------
* Only observations of disturbance Levels 2 and 3 are recorded as takes.
Reporting Measures
Caltrans shall submit a draft report to NMFS within 90 days of the
completion of marine mammal monitoring, or 60 days prior to the
issuance of any subsequent IHA for this project (if required),
whichever comes first. The annual report would detail the monitoring
protocol, summarize the data recorded during monitoring, and estimate
the number of marine mammals that may have been harassed. If no
comments are received from NMFS within 30 days, the draft final report
will become final. If comments are received, a final report must be
submitted up to 30 days after receipt of comments. All PSO datasheets
and/or raw sighting data must be submitted with the draft marine mammal
report.
Reports shall contain the following information:
<bullet> Dates and times (begin and end) of all marine mammal
monitoring;
<bullet> Construction activities occurring during each daily
observation period including: (a) what type of restoration work is
being completed, and (b) the total duration of work completed;
<bullet> PSO locations during monitoring; and
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including sea state and any other relevant weather
conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance.
Upon observation of a marine mammal, the following information must
be reported:
<bullet> Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting;
<bullet> Time of sighting;
<bullet> Identification of the animal(s) (e.g., genus/species,
lowest possible taxonomic level, or unidentified), and PSO confidence
in identification;
<bullet> Distance and location of each observed marine mammal
relative to the bridge restoration work;
<bullet> Estimated number of animals by species (min/max/best
estimate);
<bullet> Estimated number of animals by cohort (adults, pups, and
group composition, etc.);
[[Page 41926]]
<bullet> 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
flushing or head posturing); and
<bullet> Detailed information about implementation of any
mitigation measures, a description of specified actions that ensured,
and resulting changes in behavior of the animal(s), if any.
Reporting Injured or Dead Marine Mammals
In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by the IHA
(if issued), such as an injury (Level A harassment), serious injury or
mortality (e.g., ship-strike, gear interaction, and/or entanglement),
Caltrans would immediately cease the specified activities and
immediately report the incident to the Office of Protected Resources
(<a href="/cdn-cgi/l/email-protection#1f4f4d31564b4f31527071766b706d7671784d7a6f706d6b6c5f71707e7e31787069"><span class="__cf_email__" data-cfemail="a4f4f68aedf0f48ae9cbcacdd0cbd6cdcac3f6c1d4cbd6d0d7e4cacbc5c58ac3cbd2">[email protected]</span></a>) and the West Coast Regional
Stranding Coordinator. The report would include the following
information:
<bullet> Time, date, and location (latitude/longitude) of the
incident;
<bullet> Name and type of vessel involved (if applicable);
<bullet> Vessel's speed during and leading up to the incident (if
applicable);
<bullet> Description of the incident;
<bullet> Status of all sound source used in the 24 hours preceding
the incident;
<bullet> Water depth;
<bullet> Environmental conditions (e.g., wind speed and direction,
sea state, cloud cover, and visibility);
<bullet> Description of all marine mammal observations in the 24
hours preceding the incident;
<bullet> Species identification or description of the animal(s)
involved;
<bullet> Fate of the animal(s); and
<bullet> Photographs or video footage of the animal(s) (if
equipment is available).
Activities would not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS would work with Caltrans to
determine necessary actions to minimize the likelihood of further
prohibited take and ensure MMPA compliance. Caltrans would not be able
to resume their activities until notified by NMFS via letter, email, or
telephone.
In the event that Caltrans discovers an injured or dead marine
mammal, and the lead PSO determines that the cause of the injury or
death is unknown and the death is relatively recent (i.e., in less than
a moderate state of decomposition as described in the next paragraph),
Caltrans would immediately report the incident to the Office of
Protected Resources, NMFS, and the West Coast Regional Stranding
Coordinator. The report would include the same information identified
in the section above. Activities would be able to continue while NMFS
reviews the circumstances of the incident. NMFS would work with
Caltrans to determine whether modifications in the activities are
appropriate.
In the event that Caltrans discovers an injured or dead marine
mammal, and the lead PSO determines that the injury or death is not
associated with or related to the activities authorized in the IHA
(e.g., previously wounded animal, carcass with moderate to advanced
decomposition, or scavenger damage), Caltrans would report the incident
to Office of Protected Resources, NMFS, and West Coast Regional
Stranding Coordinator, within 24 hours of the discovery. Caltrans would
provide photographs or video footage (if available) or other
documentation of the stranded animal sighting to NMFS and the Marine
Mammal Stranding Network. Construction activities would be permitted to
continue.
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 impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), 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' 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 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).
NMFS does not expect Caltrans' construction activities to cause
long-term behavioral disturbance that would negatively impact an
individual animal's fitness, or result in injury, serious injury, or
mortality. Although the installation and deployment of the debris
containment system may disturb harbor seals hauled out at Castro Rocks,
NMFS expects those impacts to be of short duration (20 days for
installation and 10 day for removal) with minimal effect to the
animals. Minor and brief responses including short-duration startle
reactions, are not likely to constitute disruption of behavioral
patterns, such as migration, nursing, breeding, feeding, or sheltering.
The harbor seal stock for which incidental take authorization is
proposed is not listed as threatened or endangered under the ESA or
determined to be strategic or depleted under the MMPA. The proposed
mitigation and monitoring measures, including the establishment of
seasonal work schedules, a non-disturbance buffer around Castro Rocks,
and watercraft routes, would minimize disturbance of seals on Castro
Rocks and make Level A harassment unlikely. Therefore, the proposed
mitigation and monitoring measures are expected to eliminate the
potential for Level A harassment as well as reduce the amount and
intensity for Level B harassment. The construction activities analyzed
here are similar to, or less impactful than, numerous construction
activities conducted in other similar locations which have occurred
with no reported injuries or mortality to marine mammals, and no known
long-term adverse consequences from behavioral harassment.
Anticipated and authorized takes are expected to be limited to
short-term Level B harassment (behavioral disturbance) as construction
activities will occur over the course of 30 days. Effects on
individuals taken by Level B harassment, based upon reports in the
literature as well as monitoring from other similar activities, may
include increased swimming speeds, increased surfacing time, or
decreased foraging (e.g., Thorson and Reyff 2006). Individual animals,
even if taken multiple times, would likely move away from the visual
disturbance of the debris containment system installation and
[[Page 41927]]
removal. Repeated exposures of individuals to this visual disturbance
that could cause Level B harassment are unlikely to considerably
disrupt foraging behavior or result in significant decrease in fitness,
reproduction, or survival for the affected individuals. In all, there
would be no adverse impacts to the stock as a whole.
There is no unusual mortality event (UME) currently associated with
the harbor seal stock and there are no Biologically Important Areas or
known important habitat, aside from Castro Rocks itself, within the
project area. While essential fish habitat (EFH) for several fish
species does exist in the proposed project area, the proposed
activities would not modify existing marine mammal habitat since there
is no in-water work. This construction activity should not impact
marine mammals' foraging opportunities.
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 any of the species
or stocks through effects on annual rates of recruitment or survival:
<bullet> No serious injury or mortality is anticipated or
authorized;
<bullet> Anticipated impacts of Level B harassment include
temporary behavior modifications;
<bullet> Short duration and intermittent nature of the debris
containment system deployment and removal;
<bullet> The specified project area is very small relative to the
overall habitat ranges of the species and do not include habitat areas
of special significance (Biologically Important Areas);
<bullet> The lack of anticipated significant or long-term effects
to marine mammal habitat;
<bullet> The presumed efficacy of the mitigation measures in
reducing the effects of the specified activity; and,
<bullet> Monitoring reports from other construction 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 proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
the affected marine mammal stock.
Small Numbers
As noted previously, only take of small numbers of marine mammals
may be authorized under sections 101(a)(5)(A) and (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 proposes to authorize in this IHA is below
one-third of the estimated stock abundance for harbor seals (see
Estimated Take of Marine Mammals). The take percentage of the estimated
stock of harbor seals, if all estimated take events are assumed to
occur to new individuals, would be 29.1 percent. However, this take
estimate is assumed to represent repeated takes of the same individuals
over time and, therefore, the take estimate represents a significantly
smaller actual percentage of the total stock. It is expected that
approximately 300 harbor seals are hauled out on Castro Rocks on any
given day during the project. The majority of these 300 individuals are
expected to be comprised of the same animals during the duration of the
project. Therefore, it can be reasonably expected that the percentage
of individuals of the overall stock of harbor seals is closer to
approximately 1 percent.
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 would 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 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 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 Caltrans for conducting Phase II of the Richmond-San
Rafael Bridge Restoration Project in Richmond, CA from August 1, 2023
to March 30, 2024, provided the previously mentioned mitigation,
monitoring, and reporting requirements are incorporated. A draft of the
proposed IHA can be found at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</a>.
Request for Public Comments
We request comment on our analyses, the proposed authorization, and
any other aspect of this notice of proposed IHA for the proposed Phase
II of the Richmond-San Rafael Bridge Restoration Project. We also
request comment on the potential renewal of this proposed IHA as
described in the paragraph below. Please include with your comments any
supporting data or literature citations to help inform decisions on the
request for this IHA or a subsequent renewal IHA.
On a case-by-case basis, NMFS may issue a one-time, 1-year renewal
IHA following notice to the public providing an additional 15 days for
public comments when (1) up to another year of identical or nearly
identical activities as described in the Description of Proposed
Activity section of this notice is planned or (2) the activities as
described in the Description of Proposed Activity section of this
notice would not be completed by the time the IHA expires and a renewal
would allow for completion of the activities beyond that described in
the Dates and Duration section of this notice, provided all of the
following conditions are met:
[[Page 41928]]
<bullet> A request for renewal is received no later than 60 days
prior to the needed renewal IHA effective date (recognizing that the
renewal IHA expiration date cannot extend beyond 1 year from expiration
of the initial IHA).
<bullet> The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the
requested renewal IHA are identical to the activities analyzed under
the initial IHA, are a subset of the activities, or include changes so
minor (e.g., reduction in pile size) that the changes do not affect the
previous analyses, mitigation and monitoring requirements, or take
estimates (with the exception of reducing the type or amount of take).
(2) A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
Upon review of the request for renewal, the status of the affected
species or stocks, and any other pertinent information, NMFS determines
that there are no more than minor changes in the activities, the
mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
Dated: June 23, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-13751 Filed 6-27-23; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on June 28, 2023.
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.