Notice2024-00485
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the City of Oceanside's Harbor Fishing Pier and Non-Motorized Vessel Launch Improvement Project in Oceanside, California
Primary source
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Published
January 12, 2024
Effective
March 1, 2024
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 City of Oceanside to incidentally harass, by Level B harassment only, marine mammals during construction activities associated with harbor fishing pier and non-motorized vessel launch improvement in Oceanside, California. There are no changes from the proposed authorization to the final authorization.
Full Text
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<title>Federal Register, Volume 89 Issue 9 (Friday, January 12, 2024)</title>
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[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Notices]
[Pages 2202-2212]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00485]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD563]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the City of Oceanside's Harbor
Fishing Pier and Non-Motorized Vessel Launch Improvement Project in
Oceanside, 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 City of Oceanside to incidentally harass, by Level B harassment
only, marine mammals during construction activities associated with
harbor fishing pier and non-motorized vessel launch improvement in
Oceanside, California. There are no changes from the proposed
authorization to the final authorization.
DATES: This authorization is effective from March 1, 2024, through
February 28, 2025.
ADDRESSES: 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/action/incidental-take-authorization-city-oceansides-harbor-fishing-pier-and-non-motorized-vessel">https://www.fisheries.noaa.gov/action/incidental-take-authorization-city-oceansides-harbor-fishing-pier-and-non-motorized-vessel</a>. In case of problems accessing these documents,
please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Alyssa Clevenstine, 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.
Summary of Request
On May 16, 2023, NMFS received a request from the City of Oceanside
for an IHA to take marine mammals incidental to construction activities
associated with fishing pier and non-motorized vessel launch
improvement in Oceanside Harbor, Oceanside, CA. Following NMFS' review
of the application, the City of Oceanside submitted revised versions on
July 18 and October 17, 2023. The application was deemed adequate and
complete on November 2, 2023. The City of Oceanside's request is for
take of seven species of marine mammals by Level B harassment only.
Neither the City of Oceanside nor NMFS expect serious injury or
mortality to result from this activity and, therefore, an IHA is
appropriate. There are no changes from the proposed IHA to the final
IHA.
Description of Specified Activity
The City of Oceanside plans to remove and replace the existing
public fishing pier and non-motorized vessel launch in Oceanside
Harbor, Oceanside, CA. The applicant plans to use vibratory extraction
to remove four 16-inch octagonal concrete support piles; vibratory
driving to install up to 18 18-inch round plastic-coated steel piles to
within 0.61-1.52 meters (m; 2-5 feet (ft)) of required depth; and,
potentially, impact driving to complete pile installation depending on
observed soil resistance. While not expected to be required based on
site geology, 18 10-inch steel piles may be used as temporary guide
piles to aid in the installation of the larger 18-inch structural
piles.
A maximum of 6 non-consecutive days of piling activities will occur
during the course of construction (5-6 months) from March 2024 through
February 2025 (table 1). All project activities for which take is being
requested will be located in Oceanside Harbor, Oceanside, CA.
A detailed description of the planned construction project is
provided in the Federal Register notice for the proposed IHA (88 FR
83081, November 28, 2023). 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 specified activity.
Table 1--Pile Extraction and Installation Activities
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Estimated
Duration of Duration of blows of
Pile activity Method Pile size (inch), Piles per activity vibratory impact driving
material day (days) activity per per pile
pile (minutes) (strikes)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Extraction............................. Vibratory................. 16, concrete............. 4 1 25 N/A
Installation........................... Vibratory................. 18, steel................ 4 * 5 25 N/A
Installation........................... Impact.................... 18, steel................ 4 * 5 N/A 300
[[Page 2203]]
Installation........................... Vibratory................. 10, steel................ 4 N/A 10 N/A
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Note: Impact pile installation will be used for driving piles 0.61-1.52 m to final depth, depending on observed sediment resistance.
* Vibratory and impact installation of 18-inch steel piles will occur in the same 5 days.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to the City of Oceanside
was published in the Federal Register on November 29, 2023 (88 FR
83081). That notice described, in detail, the City of Oceanside's
planned activities, the marine mammal species that may be affected by
the activities, and the anticipated effects on marine mammals. In that
notice, we requested public input on the request for authorization
described therein, our analyses, the proposed authorization, and any
other aspect of the notice of proposed IHA, and requested that
interested persons submit relevant information, suggestions, and
comments. During the 30-day public comment period no substantive
comments were received.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the IHA 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, instead of reprinting the
information. Additional information regarding population trends and
threats may be found in NMFS' 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'
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species for which take is 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 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. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. Pacific SARs. All values presented in table 2 are the most
recent available at the time of publication (including from the 2022
SARs) 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 2--Marine Mammal Species Likely Impacted by the Specified Activities \1\
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ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/SI
\2\ abundance survey) \3\ \4\
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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
Long-beaked common dolphin..... Delphinus delphis California............ -/-; N 83,379 (0.216, 69,636, 668 >=29.7
capensis. 2018).
Short-beaked common dolphin.... Delphinus delphis California/Oregon/ -/-; N 1,056,308 (0.21, 8,889 >=30.5
delphis. Washington. 888,971, 2018).
Pacific white-sided dolphin.... Lagenorhynchus California............ -/-; N 34,999 (0.222, 29,090, 279 7
obliquidens. 2018).
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Order Carnivora--Pinnipedia
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Family Otariidae (eared seals and
sea lions):
California sea lion............ Zalophus californianus U.S................... -/-; N 257,606 (N/A, 233,515, 14,011 >321
2015).
Family Phocidae (earless seals):
Harbor seal.................... Phoca vitulina California............ -/-; N 30,968 (0.157, 27,348, 1,641 42.8
richardii. 2012).
Northern elephant seal......... Mirounga California Breeding... -/-; N 187,386 (N/A, 85,369, 5,122 13.7
angustirostris. 2013).
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\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>; Committee on Taxonomy (2022)).
[[Page 2204]]
\2\ 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.
\3\ 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.
\4\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, vessel strike). Annual 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.
As indicated above, all seven species in table 2 temporally and
spatially co-occur with the activity to the degree that take is
reasonably likely to occur. Based on previous marine mammal monitoring
events near the mouth of Oceanside Harbor (Merkel and Associates, Inc.,
2022; Merkel and Associates, Inc., 2023), other marine mammals rarely
occur within Oceanside Harbor and any occurrence in the project area
would be very rare. While Risso's dolphins (Grampus griseus) and gray
whales (Eschrichtius robustus) have been sighted outside of the harbor
and in coastal waters, these species' general spatial occurrence is
such that take is not expected to occur as they typically occur more
offshore, and they are not discussed further.
A detailed description of the species likely to be affected by this
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 (88 FR 83081, November
28, 2023); 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 the NMFS website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for generalized species accounts.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995, Wartzok and
Ketten, 1999, Au and Hastings, 2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct measurements of
hearing ability have been successfully completed for mysticetes (i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in table 3.
Table 3--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al., 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006, Kastelein et al., 2009, Reichmuth et al.,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from the City of Oceanside's
construction activities have the potential to result in Level B
harassment of marine mammals in the project area. The notice of the
proposed IHA (88 FR 83081, November 28, 2023) included a discussion of
the effects of anthropogenic noise on marine mammals and the potential
effects of underwater noise from the City of Oceanside's construction
activities on marine mammals and their habitat. That information and
analysis is referenced in this final IHA determination and is not
repeated here; please refer to the notice of the proposed IHA (88 FR
83081, November 28, 2023).
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
authorized through this IHA, which informed 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,
[[Page 2205]]
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 be by Level B harassment only in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to the acoustic sources. Based on the nature of
the activity and the anticipated effectiveness of the mitigation
measures (i.e., shutdown), Level A harassment is neither anticipated
nor authorized (see Mitigation and Monitoring and Reporting sections).
As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates 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) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the authorized take estimates.
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 Permanent Threshold Shift (PTS) of some
degree (equated to Level A harassment).
Level B Harassment--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 or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Southall et al., 2007, Southall et al., 2021, Ellison et
al., 2012). Based on what the available science indicates and the
practical need to use a threshold based on a metric that is both
predictable and measurable for most activities, NMFS typically uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS generally predicts that marine
mammals are likely to be behaviorally harassed in a manner considered
to be Level B harassment when exposed to underwater anthropogenic noise
above root-mean-squared sound pressure levels (RMS SPL) of 120 dB
(referenced to 1 microPascal (re 1 [mu]Pa)) for continuous (e.g.,
vibratory pile driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa
for non-explosive impulsive (e.g., seismic airguns) or intermittent
(e.g., scientific sonar) sources. Generally speaking, Level B
harassment take estimates based on these behavioral harassment
thresholds are expected to include any likely takes by temporary
threshold shift (TTS) as, in most cases, the likelihood of TTS occurs
at distances from the source less than those at which behavioral
harassment is likely. TTS of a sufficient degree can manifest as
behavioral harassment, as reduced hearing sensitivity and the potential
reduced opportunities to detect important signals (e.g., conspecific
communication, predators, prey) may result in changes in behavior
patterns that would not otherwise occur.
The City of Oceanside's construction activities include the use of
continuous (vibratory pile removal and installation) and, potentially,
impulsive (impact pile installation) sources, and therefore the RMS SPL
thresholds of 120 and 160 dB re 1 [mu]Pa are both applicable.
Level A harassment--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 City
of Oceanside's activities include the use of impulsive (impact hammer)
and non-impulsive (vibratory hammer) sources.
These thresholds are provided in table 4 below. 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 4--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.
----------------------------------------------------------------------------------------------------------------
* 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.
[[Page 2206]]
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
activities that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss (TL)
coefficient.
Pile driving activities using an impact hammer as well as a
vibratory hammer generate underwater noise that could result in
disturbance to marine mammals near the project area. A review of
underwater sound measurements for similar projects was conducted to
estimate the near-source sound levels for impact and vibratory pile
driving and vibratory extraction. Source levels and sound exposure
levels (SEL) for planned removal and installation activities derived
from this review are shown in table 5.
Table 5--Project Sound Source Levels
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Peak SPL dB RMS SPL dB
Activity Method Pile size (inch, re 1 [mu]Pa re 1 [mu]Pa SEL dB re 1 Source
material) \1\ \1\ [mu]Pa \1\
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Extraction......................... Vibratory............ 16, concrete \2\..... N/A 163 N/A NAVFAC SW, 2022.
Installation....................... Vibratory............ 18, steel............ 196 158 N/A Caltrans, 2020.
Installation....................... Impact............... 18, steel \3\........ 200 185 175 Caltrans, 2020.
Installation....................... Vibratory............ 10, steel \4\........ 171 155 N/A Illingworth and
Rodkin, 2007.
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Note: All 18-inch round steel piles will be installed using both vibratory and impact driving, therefore, the total number of 18-inch piles proposed for
use is 18. Use of 10-inch piles will be as temporary support, and will be driven and removed in the same day as the permanent 18-inch piles.
\1\ As measured, or calculated, at 10 m (33 ft).
\2\ Proxy source levels provided by NMFS from Pier 6 Replacement Project, San Diego Bay (NAVFAC SW, 2022).
\3\ Analysis of pooled reported data provided by NMFS (Caltrans, 2020).
\4\ In the absence of information on vibratory installation of 10[hyphen]inch round steel piles, source data from 12[hyphen]inch round steel piles
(Illingworth and Rodkin, 2007) was used as a proxy source level.
Level B Harassment Zone--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 topography. The general formula for underwater TL is:
TL = B * Log<INF>10</INF> (R<INF>1</INF>/R<INF>2</INF>),
where
TL = transmission loss in dB;
B = transmission loss coefficient;
R<INF>1</INF> = the distance of the modeled SPL from the driven
pile; and
R<INF>2</INF> = 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, known as practical spreading,
which is the most appropriate assumption for the City of Oceanside's
activities in the absence of specific modeling and site-specific
information. Sound propagation in Oceanside Harbor is limited by
physical structures and substantial sound will be confined within the
harbor (see figures 6-1, 6-2 in the IHA application). The Level A and
Level B harassment isopleths for the City of Oceanside's activities are
shown in table 6.
Table 6--Distance to the Level A and Level B Harassment Thresholds for Construction Activities
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Level A Level A Level A Level B
Activity Method Pile size (inch, threshold for threshold for threshold for harassment
material) MF (m) PW (m) OW (m) zone (m)
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Extraction........................... Vibratory............... 16, concrete........... 1.2 7.9 0.6 7,356
Installation......................... Vibratory............... 18, steel.............. 0.5 3.7 0.3 3,415
Installation......................... Impact.................. 18, steel.............. 11.7 176.7 12.9 100
Installation......................... Vibratory............... 10, steel.............. 0.2 1.3 0.1 2,154
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: For impact pile driving, the single strike SEL was used to calculate distances to Level A harassment thresholds.
Abbreviations: MF = mid[hyphen]frequency cetaceans, PW = phocid pinnipeds, OW = otariid pinnipeds.
Level A Harassment Zones--The ensonified area associated with Level
A harassment is more technically challenging to predict due to the need
to account for a duration component. Therefore, NMFS developed an
optional User Spreadsheet tool to accompany the Technical Guidance that
can be used to relatively simply predict an isopleth distance for use
in conjunction with marine mammal density or occurrence to help predict
potential takes. We note that because of some of the assumptions
included in the methods underlying this optional tool, we anticipate
that the resulting isopleth estimates are typically going to be
overestimates of some degree, which may result in an
[[Page 2207]]
overestimate of potential take by Level A harassment. However, this
optional tool offers the best way to estimate isopleth distances when
more sophisticated modeling methods are not available or practical. For
stationary sources (i.e., vibratory and impact piling), the optional
User Spreadsheet tool predicts the distance at which, if a marine
mammal remained at that distance for the duration of the activity, it
would be expected to incur PTS. Inputs used in the optional User
Spreadsheet tool, and the resulting estimated isopleths, are reported
in tables 6 and 7. The isopleths generated by the User Spreadsheet used
the same TL coefficients as the Level B harassment isopleth
calculations, as indicated above for each activity type. Inputs used in
the User Spreadsheet (e.g., number of piles per day, duration and/or
strikes per pile) are presented in table 1. The maximum RMS SPL, SEL,
and peak SPL are reported in table 7. The cumulative SEL and peak SPL
were used to calculate Level A harassment isopleths for vibratory pile
driving and extraction activities, while the single strike SEL value
was used to calculate Level A harassment isopleths for impact pile
driving activity.
Table 7--Sound Levels Used for Predicting Underwater Sound Impacts
--------------------------------------------------------------------------------------------------------------------------------------------------------
Single strike
Activity Method Pile size (inch, Duration Peak SPL dB RMS SPL dB re SEL dB re 1
material) (hours/day) re 1 [mu]Pa 1 [mu]Pa [mu]Pa\2\ sec
--------------------------------------------------------------------------------------------------------------------------------------------------------
Extraction........................... Vibratory............... 16, concrete........... 1.67 N/A 163 N/A
Installation......................... Vibratory............... 18, steel.............. 1.67 196 158 N/A
Installation......................... Impact.................. 18, steel.............. 0.13 200 185 175
Installation......................... Vibratory............... 10, steel.............. 0.67 171 155 N/A
--------------------------------------------------------------------------------------------------------------------------------------------------------
Marine Mammal Occurrence
In this section we provide information about the occurrence of
marine mammals, including density or other relevant information which
will inform the take calculations.
Bottlenose Dolphin--Bottlenose dolphins can occur at any time of
year in the waters around Oceanside Harbor. Based on previous
monitoring (Merkel and Associates, Inc., 2022), an average of 6
bottlenose dolphins per day were observed with a maximum of 12
individuals being observed on a single day. This higher peak of 12
individuals was used to calculate Level B harassment for bottlenose
dolphin.
Common Dolphin--Common dolphins are generally abundant in the outer
coastal waters but are not known to occur regularly in Oceanside
Harbor. Based on marine mammal monitoring by NAVFAC SW (2015), during
El Ni[ntilde]o conditions an average of 8.5 common dolphins per day
(rounded to nine per day) were observed in northwest San Diego Bay.
This expected daily individual count was used to calculate the take by
Level B harassment for common dolphins within Oceanside Harbor as no
local data exists.
Pacific White-Sided Dolphin--Pacific white[hyphen]sided dolphins
are commonly seen offshore of southern California but are not known to
occur regularly in Oceanside Harbor. Based on the observations
presented by NAVFAC SW (2015), during El Ni[ntilde]o conditions an
average of 0.3 Pacific white[hyphen]sided dolphins per day (rounded to
one per day) were observed. This expected daily individual count was
used to calculate the Level B harassment for Pacific white[hyphen]sided
dolphins.
California Sea Lion--California sea lions are present in Oceanside
Harbor year[hyphen]round and numbers vary considerably. The daily
estimate provided by the Oceanside Harbor Department is over 100
individuals. Limited counts from photographs and spot counts average
approximately 50 individuals and are known to be incomplete estimates.
Based on the variability in the number of sea lions present in the
harbor, an estimate of 100 sea lions per day was used to estimate take.
Harbor Seal--Based on marine mammal monitoring by NAVFAC SW (2015),
during El Ni[ntilde]o conditions an average of 2.5 harbor seals per day
(rounded to three per day) were observed. This expected daily
individual count was used to calculate the Level B harassment for
harbor seals in Oceanside Harbor.
Northern Elephant Seal--Due to increasing population size of
northern elephant seals, presence in the Southern California Bight is
considered a reasonable possibility (Carretta et al., 2023). Based on
marine mammal monitoring by NAVFAC SW (2015), an average of 0.1
northern elephant seals per day (rounded to one per day) were observed
during El Ni[ntilde]o conditions. This expected daily individual count
was used to calculate the Level B harassment for northern elephant
seals in Oceanside Harbor.
Take Estimation
Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and is authorized.
No take by Level A harassment is expected for any species of marine
mammal due to the small zone sizes for most taxa and the low likelihood
that an animal would approach during in-water construction or remain
within the Level A harassment isopleth long enough to incur PTS during
the specified activities. Planned shutdown zones will encompass the
extent of the estimated Level A harassment isopleths (180 m for phocid
pinnipeds during impact driving, 15 m for all other species and
activities) and are expected to be effective at avoiding Level A
harassment for all species. Given the locations of protected species
observers (PSOs) described in the Monitoring and Reporting section, in
conjunction with the City of Oceanside's shutdown mitigation measure,
NMFS agrees that monitoring and shutdown measures are likely to be
successful at avoiding take by Level A harassment.
Incidental take by Level B harassment was estimated for each
species by multiplying the expected average number of individuals per
day by the number of work days (6 days; table 8). Take estimates for
each species were calculated by multiplying the estimated site-specific
abundance of each species by the area of impact where noise levels
exceed acoustic thresholds for marine mammals during each type of
piling activity (vibratory removal, vibratory driving, impact driving)
and pile size (16-inch concrete, 18-inch steel, 10-inch steel).
Estimated daily exposures for each species were based on evaluation of
the potential presence of each marine mammal species using recent
[[Page 2208]]
occurrence data from Oceanside Harbor (Merkel and Associates, Inc.,
2022; Merkel and Associates, Inc., 2023).
Estimated Take = Expected Average Individuals per Day x Number of Work
Days
Due to a paucity of marine mammal occurrence data within Oceanside
Harbor, and with the probability of El Ni[ntilde]o conditions
persisting throughout 2024 (<a href="https://www.cpc.ncep.noaa.gov/products/analysis_monitoring/enso_advisory/ensodisc.shtml">https://www.cpc.ncep.noaa.gov/products/analysis_monitoring/enso_advisory/ensodisc.shtml</a>), four species of
marine mammal (common dolphin, Pacific white-sided dolphin, harbor
seal, northern elephant seal) that are unlikely to occur within a semi-
enclosed harbor environment were included to account for a potential
increase in occurrence that has been previously documented for those
species under similar climatological conditions (NAVFAC SW, 2015).
Table 8--Take by Level B Harassment Authorized
----------------------------------------------------------------------------------------------------------------
Maximum
Expected estimated Estimated
Common name Scientific name Stock average Level B takes as a
individuals harassment percentage of
per day takes population
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin \1\....... Tursiops California 12 72 15.9
truncatus. Coastal.
Common dolphin (long-beaked) Delphinus California..... * 9 * 54 <1
\2\. capensis.
Common dolphin (short-beaked) Delphinus California/ * 9 * 54 <1
\2\. delphis. Oregon/
Washington.
Pacific white-sided dolphin Lagenorhynchus California/ 1 6 <1
\2\. obliquidens. Oregon/
Washington--No
rthern and
Southern.
California sea lion \3\...... Zalophus U.S............ 100 600 <1
californianus.
Harbor seal \2\.............. Phoca vitulina California..... 3 18 <1
richardii.
Northern elephant seal \2\... Mirounga California 1 6 <1
angustirostris. breeding.
----------------------------------------------------------------------------------------------------------------
\1\ Average daily counts based on observations during Oceanside Harbor Dredging 2022 Project Monitoring, rounded
up to nearest individual count (Merkel and Associates Inc., 2022).
\2\ Average daily counts based on observations during Year 2 of Navy Base Point Loma's Fuel Pier Replacement
Project Monitoring, rounded up to nearest individual count (NAVFAC SW, 2015).
\3\ Reported high estimate of sea lions observed on pinniped float by Oceanside Harbor District staff.
* A total of 54 takes are estimated and may be attributed to either long- or short-beaked common dolphin
species.
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.
The City of Oceanside must ensure that construction supervisors and
crews, the monitoring team, and relevant staff/contractors are trained
prior to the start of all piling activities so that responsibilities,
communication procedures, monitoring protocols, and operational
procedures are clearly understood. New personnel joining during the
project must be trained prior to commencing work.
Timing Restrictions
All piling activities will be conducted during daylight hours,
generally between 45 minutes post-sunrise and 45 minutes pre-sunset.
All piling will occur in March 2024 and/or September 2024 through
February 2025, when the likelihood of ESA-listed California least tern
breeding and nesting in the work area is minimal, as proposed by the
City of Oceanside.
Protected Species Observers
The placement of PSOs during all pile driving activities (described
in the Monitoring and Reporting section) will ensure that the entire
shutdown zone is visible. Should environmental conditions deteriorate
such that the entire shutdown zone is not visible (e.g., fog, heavy
rain), pile driving will be delayed until the PSO is confident marine
mammals within the shutdown zone can be detected.
PSOs will monitor the full shutdown zones and the Level B
harassment zones to the extent practicable. Monitoring zones provide
utility for observing by establishing monitoring protocols for areas
adjacent to the shutdown zones. Monitoring zones enable observers to be
aware of and communicate the presence of marine mammals in the project
areas outside the shutdown zones and thus prepare for a potential
cessation of activity should the animal enter the shutdown zone.
Pre- and Post-Activity Monitoring
Monitoring will take place from 30 minutes prior to initiation of
pile driving activities (i.e., pre-clearance
[[Page 2209]]
monitoring) through 30 minutes post-completion of pile driving. Prior
to the start of daily in-water construction activity, or whenever a
break in pile driving of 30 minutes or longer occurs, PSOs will observe
the shutdown and monitoring zones for a period of 30 minutes. The
shutdown zone will be considered cleared when a marine mammal has not
been observed within the zone for a 30-minute period. If a marine
mammal is observed within the shutdown zones listed in table 9, pile
driving activity will be delayed or halted. If work ceases for more
than 30 minutes, the pre-activity monitoring of the shutdown zones will
commence. A determination that the shutdown zone is clear must be made
during a period of good visibility (i.e., the entire shutdown zone and
surrounding waters must be visible to the naked eye).
Soft-Start Procedures for Impact Driving
Soft-start procedures provide additional protection to marine
mammals by providing warning and/or giving marine mammals a chance to
leave the area prior to the hammer operating at full capacity. If
impact pile driving is necessary to achieve required tip elevation,
City of Oceanside staff and/or contractors are required to provide an
initial set of three strikes from the hammer at reduced energy,
followed by a 30-second waiting period, then two subsequent reduced-
energy strike sets. Soft-start will 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.
Shutdown Zones
The City of Oceanside must establish shutdown zones for all pile
driving activities. The purpose of a shutdown zone is generally to
define an area within which shutdown of the activity will occur upon
sighting of a marine mammal (or in anticipation of an animal entering
the defined area). Shutdown zones are based upon the Level A harassment
isopleth for each pile size/type and driving method where applicable,
as shown in table 6. During all in-water piling activities, the City of
Oceanside plans to implement a buffered 15 m shutdown zone, with the
exception of a 180 m shutdown zone for phocids during the use of impact
pile driving of 18-inch piles. These distances exceed the estimated
Level A harassment isopleths described in table 6. Adherence to this
expanded shutdown zone will avoid the potential for the take of phocids
by Level A harassment during impact pile driving. For pile driving, the
radii of the shutdown zones are rounded to the next largest 10 m
interval in comparison to the Level A harassment isopleth for each
activity type. If a marine mammal is observed entering, or detected
within, a shutdown zone during pile driving activity, the activity must
be stopped until there is visual confirmation that the animal has left
the zone or the animal is not sighted for a period of 15 minutes.
Shutdown zones for each activity type are shown in table 9.
All marine mammals will be monitored in the Level B harassment
zones and throughout the area as far as visual monitoring can take
place. If a marine mammal enters the Level B harassment zone, in-water
activities will continue and PSOs will document the animal's presence
within the estimated harassment zone.
Table 9--Shutdown and Harassment Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pile size (inch), Shutdown zone Shutdown zone Shutdown zone Harassment
Activity Method material for MF (m) for PW (m) for OW (m) zone (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Extraction........................... Vibratory............... 16, concrete........... 15 15 15 7,360
Installation......................... Vibratory............... 18, steel.............. 15 15 15 3,420
Installation......................... Impact.................. 18, steel.............. 15 180 15 100
Installation......................... Vibratory............... 10, steel.............. 15 15 15 2,160
--------------------------------------------------------------------------------------------------------------------------------------------------------
Based on our evaluation of the City of Oceanside's planned
measures, NMFS has determined that the planned 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.
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;
<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
Marine mammal monitoring must be conducted in accordance with the
conditions in this section and this IHA. Marine mammal monitoring
during pile driving activities will be conducted by two PSOs meeting
NMFS' standards and
[[Page 2210]]
in a manner consistent with the following:
<bullet> PSOs must be independent of the activity contractor (for
example, employed by a subcontractor) and have no other assigned tasks
during monitoring periods;
<bullet> At least one PSO will have prior experience performing the
duties of a PSO during construction activity pursuant to a NMFS-issued
incidental take authorization;
<bullet> Other PSOs may substitute other relevant experience,
education (degree in biological science or related field), or training
for prior experience performing the duties of a PSO during construction
activity pursuant to a NMFS-issued incidental take authorization;
<bullet> Where a team of three or more PSOs is required, a lead
observer or monitoring coordinator must be designated. The lead
observer must have prior experience performing the duties of a PSO
during construction activity pursuant to a NMFS-issued incidental take
authorization; and
<bullet> PSOs must be approved by NMFS prior to beginning any
activity subject to the IHA.
PSOs should 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.
The City of Oceanside will have two PSOs stationed at the best
possible vantage points in the project area to monitor during all pile
driving activities. Monitoring will occur from elevated locations along
the shoreline where the entire shutdown zones are visible. PSOs will be
equipped with high quality binoculars for monitoring and radios or
cells phones for maintaining contact with work crews. Monitoring will
be conducted 30 minutes before, during, and 30 minutes after all in-
water construction activities. In addition, PSOs will record all
incidents of marine mammal occurrence, regardless of distance from
activity, and will document any behavioral reactions in concert with
distance from piles being driven or removed. Pile driving activities
include the time to install or remove a single pile or series of piles,
as long as the time elapsed between uses of the pile driving equipment
is no more than 30 minutes.
Reporting
The City of Oceanside will provide the following reporting as
necessary during active pile driving activities:
<bullet> The applicant will report any observed injury or mortality
as soon as feasible and in accordance with NMFS' standard reporting
guidelines. Reports will be made by phone (866-767-6114) and by email
(<a href="/cdn-cgi/l/email-protection#0151532f4855512f4c6e6f68756e73686f665364716e737572416f6e60602f666e77"><span class="__cf_email__" data-cfemail="7a2a2854332e2a54371514130e150813141d281f0a15080e093a14151b1b541d150c">[email protected]</span></a>) and will include the following:
[cir] Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
[cir] Species identification (if known) or description of the
animal(s) involved;
[cir] Condition of the animal(s) (including carcass condition if
the animal is dead);
[cir] Observed behaviors of the animal(s), if alive;
[cir] If available, photographs or video footage of the animal(s);
and
[cir] General circumstances under which the animal was discovered;
<bullet> An annual report summarizing the prior year's activities
will be provided that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring, estimates
the number of listed marine mammals that may have been incidentally
taken during project pile driving, and provides an interpretation of
the results and effectiveness of all monitoring tasks. The annual draft
report will be provided no later than 90 days following completion of
construction activities. Any recommendations made by NMFS will be
addressed in the final report, due after the IHA expires and including
a summary of all monitoring activities, prior to acceptance by NMFS.
Final reports will follow a standardized format for PSO reporting from
activities requiring marine mammal mitigation and monitoring; and
<bullet> All PSOs will use a standardized data entry format (see
Monitoring Plan).
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).
To avoid repetition, the discussion of our analysis applies to all
species listed in table 2, given that the anticipated effects of the
construction activities on these different marine mammal stocks are
expected to be similar. There is little information about the nature or
severity of the impacts, or the size, status, or structure of any of
these species or stocks that would lead to a different analysis for
these activities.
Level A harassment is extremely unlikely for any species given the
small size of the Level A harassment isopleths and the required
mitigation measures designed to minimize the possibility of injury to
marine mammals (see Mitigation section). No mortality or serious injury
is anticipated given the nature of the activity.
Pile installation and removal activities are likely to result in
the Level B harassment of marine mammals that move into the ensonified
area, primarily
[[Page 2211]]
in the form of disturbance or displacement of marine mammals.
Take would occur within a limited, confined area of each stock's
range. 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.
No marine mammal stocks for which incidental take is authorized are
listed as threatened or endangered under the ESA or determined to be
strategic or depleted under the MMPA. The relatively low marine mammal
occurrences in the area, small shutdown zones, and planned monitoring
make injury takes of marine mammals unlikely. The shutdown zones will
be thoroughly monitored before vibratory pile installation and removal
begins, and construction activities will be postponed if a marine
mammal is sighted within the shutdown zone. There is a high likelihood
that marine mammals will be detected by PSOs under environmental
conditions described for the project. Limiting construction activities
to daylight hours will also increase detectability of marine mammals in
the area. Therefore, the planned mitigation and monitoring measures are
expected to eliminate the potential for injury and Level A harassment
as well as reduce the amount and intensity for Level B behavioral
harassment. Furthermore, the pile installation and removal 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 5-6 months. 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., NAVFAC SW, 2018). Individual animals, even if
taken multiple times, would likely move away from the sound source and
be temporarily displaced from the area due to elevated noise level
during pile removal. There are no known feeding or other biologically
important areas (BIAs) for any species in or near the project area
(Ferguson et al., 2015). Marine mammals could also experience TTS if
they move into the Level B harassment monitoring zone. TTS is a
temporary loss of hearing sensitivity when exposed to loud sound and,
given the likely levels and duration of exposure to pile driving, any
shift of the hearing threshold is expected to recover completely within
minutes to hours. While TTS could occur, it is not considered a likely
outcome of this activity.
Given the limited number of total predicted exposures, no
individual marine mammals of any species, with the possible exception
of California sea lions, are expected to be taken on more than a few
days during the construction activities. California sea lions are
relatively common in the area and potential takes would likely involve
sea lions loafing on, or in the vicinity of, physical structures or
moving through the area en route to foraging areas or structures where
they haul out. Relocation of the float where they frequently haul out
is expected to reduce both the number of sea lions present in the area
during construction and also the likelihood that they may be repeatedly
impacted.
The project is not expected to have significant adverse effects on
marine mammal habitat. There is no ESA-designated critical habitat
within the project area, and the planned activities will not
permanently modify existing marine mammal habitat. The activities may
cause fish to leave the area temporarily which could impact marine
mammals' foraging opportunities in a limited portion of the foraging
range. However, due to the short duration of the planned activities and
the relatively small area of affected habitat, the impacts to marine
mammal habitat are not expected to cause significant or long-term
negative consequences.
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
minor, short-term effects on individuals. The specified activities are
not expected to impact reproduction or survival of any individual
marine mammals, much less affect 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 any of the species or stocks
through effects on annual rates of recruitment or survival:
<bullet> No serious injury or mortality, or Level A harassment, is
anticipated or authorized;
<bullet> The specified activities are of a very short duration and
associated ensonified areas are very small relative to the overall
habitat ranges of both species;
<bullet> The project area does not overlap with known BIAs or ESA-
designated critical habitat;
<bullet> Significant or long-term effects to marine mammal habitat
are not anticipated; and
<bullet> Mitigation measures are expected to reduce the effects of
the specified activity to the level of least practicable adverse
impact.
Based on the analysis contained herein of the likely effects of the
specified activities 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
activity will have a negligible impact on all affected marine mammal
species or stocks.
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 has authorized is below one-third of the
estimated stock abundances for all seven species (see table 8). For all
but one species, the authorized take of individuals is less than 1
percent of the abundance of the affected stock (with the exception for
bottlenose dolphins at less than 16 percent). This is likely a
conservative estimate because it assumes all takes are of different
individual animals, which is likely not the case. Some individuals may
return multiple times in a day, but PSOs will count them as separate
takes if they cannot be individually identified.
[[Page 2212]]
Based on the analysis contained herein of the activity (including
the mitigation and monitoring measures) and the anticipated take of
marine mammals, NMFS 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 ESA of 1973 (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 authorized for 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 NAO 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 this IHA qualifies to be categorically excluded from
further NEPA review.
Authorization
NMFS has issued an IHA to the City of Oceanside for the potential
harassment of small numbers of seven marine mammal species incidental
to construction activities in Oceanside Harbor, Oceanside, CA, that
includes the previously explained mitigation, monitoring, and reporting
requirements.
Dated: January 8, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-00485 Filed 1-11-24; 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.