80 FR 28588 - Takes of Marine Mammals Incidental to Specified Activities; Construction Activities at the Children's Pool Lifeguard Station at La Jolla, California
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration Federal Register Volume 80, Issue 96 (May 19, 2015)
National Oceanic and Atmospheric Administration
Federal Register Volume 80, Issue 96 (May 19, 2015)
| Page Range | 28588-28608 | |
| FR Document | 2015-11994 |
[Federal Register Volume 80, Number 96 (Tuesday, May 19, 2015)] [Notices] [Pages 28588-28608] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-11994] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD807 Takes of Marine Mammals Incidental to Specified Activities; Construction Activities at the Children's Pool Lifeguard Station at La Jolla, California AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; proposed Incidental Harassment Authorization (IHA); request for comments. ----------------------------------------------------------------------- SUMMARY: NMFS has received an application from the City of San Diego for an IHA to take small numbers of marine mammals, by Level B harassment, incidental to construction activities at the Children's Pool Lifeguard Station in La Jolla, California. NMFS has reviewed the IHA application, including all supporting documents, and determined that it is adequate and complete. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to the City of San Diego to take, by Level B harassment only, three species of marine mammals during the specified activities. DATES: Comments and information must be received no later than June 18, 2015. ADDRESSES: Comments on the IHA application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is [email protected]. Please include 0648-XD807 in the subject line. NMFS is not responsible for email comments sent to addresses other than the one provided here. Comments sent via email, including all attachments, must not exceed a 25-megabyte size. All comments received are a part of the public record and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental/ without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. An electronic copy of the IHA application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/. Documents cited in this notice, including the IHA application, may also be viewed, by appointment, during regular business hours, at the aforementioned address. FOR FURTHER INFORMATION CONTACT: Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301-427-8401. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.), directs the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals, by United States citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. Authorization for the incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring, and reporting of such takings are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``. . . an impact resulting from the specified [[Page 28589]] activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.'' Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit for NMFS's review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the public comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines ``harassment'' as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Summary of Request On February 25, 2015, NMFS received an application from the City of San Diego, Engineering and Capital Projects Department, requesting an IHA for the taking of marine mammals incidental to construction activities. NMFS determined that the IHA application was adequate and complete on April 9, 2015. The City of San Diego would undertake the proposed construction activities between June 2015 and June 2016 at the Children's Pool Lifeguard Station in La Jolla, California. In-air noise generated from equipment used during the construction activities is likely to result in the take of marine mammals. The requested IHA would authorize the take, by Level B (behavioral) harassment, of small numbers of Pacific harbor seals (Phoca vitulina richardii), California sea lions (Zalophus californianus), and northern elephant seals (Mirounga angustirostris) incidental to construction activities of the Children's Pool Lifeguard Station at La Jolla, CA. Because the proposed construction activities were subject to delays and cannot be completed by June 27, 2015, the City of San Diego has requested a renewal of the 2014 to 2015 IHA for an additional year. The construction activities are planned to take place during June 2015 to June 2016 in La Jolla, CA. Regarding the previous IHA, NMFS published a notice in the Federal Register (79 FR 8160) on February 11, 2014, making preliminary determinations and proposing to issue an IHA. The notice initiated a 30-day public comment period. On June 6, 2014, NMFS published a notice in the Federal Register (79 FR 32699) announcing the issuance of an IHA. Additional information on the construction activities at the Children's Pool Lifeguard Station is contained in the IHA application, which is available upon request (see ADDRESSES). Also, NMFS issued the City of San Diego an IHA in 2013 (78 FR 40705, July 8, 2013) for demolition and construction activities at the Children's Pool Lifeguard Station that were scheduled to be completed in 2013. Because the construction activities were subject to delays (e.g., nesting migratory birds, unexpected drainage pipes, unexpected demolition and construction planning, etc.) and could not be completed by December 15, 2013, the City of San Diego requested a renewal of the 2013 IHA for an additional year. Additional information on the construction activities at the Children's Pool Lifeguard Station is contained in the IHA application, which is available upon request (see ADDRESSES). Description of the Proposed Specified Activity Overview The City of San Diego plans to conduct construction activities at the Children's Pool Lifeguard Station in La Jolla, CA in order to meet the needs of the lifeguards at Children's Pool and the demand for lifeguard services. The overall project includes the demolition of the existing lifeguard station and construction of a new, three-story, lifeguard station on the same site. Demolition of the existing lifeguard station was completed in 2013 to 2014 and construction of the new lifeguard station is expected to be completed in 2015 to 2016. Because the previously existing lifeguard station was demolished and closed to entry, a temporary lifeguard tower was moved onto the bluff near the previous lifeguard station. Proposed Dates and Duration The City of San Diego is planning to begin/resume the project at the Children's Pool in La Jolla, CA on June 1, 2015, (see page 30 to 31 of the Negative Declaration in the IHA application) with completion of the new lifeguard station to be completed by December 15, 2015. The City of San Diego and NMFS are requiring a moratorium on all construction activities during harbor seal pupping and weaning (i.e., December 15th to May 30th; see page 5 of the Mitigated Negative Declaration in the IHA application). Therefore, work on this project can only be performed between June 1st and December 14th of any year. Proposed construction activities would generally occur Monday through Friday (no work will occur on holidays) during daylight hours only, as stipulated in the ``Mitigated Negative Declaration'' included in the IHA application and local ordinances. As a modification to the original IHA, the City of San Diego has requested that planned construction activities be allowed on weekends (i.e., Saturday and Sunday to ensure completion of the project during 2015. The exact dates of the proposed activities depend on logistics and scheduling. The IHA is valid through June 2016 to allow for construction delays. Proposed Specific Geographic Region The La Jolla Children's Pool Lifeguard Station is located at 827 \1/2\ Coast Boulevard, La Jolla, CA 92037 (32[deg] 50' 50.02'' North, 117[deg] 16' 42.8'' West). The locations and distances (in ft) from the construction site to the Children's Pool haul-out area, breakwater ledge/rocks haul-out area, reef haul-out area, and Casa Beach haul-out area can be found in the City of San Diego's IHA application. Detailed Description of the Proposed Specified Activities The Children's Pool was created in 1931 by building a breakwater wall which created a protected pool for swimming. Although partially filled with sand, the Children's Pool still has open water for swimming and a beach for sunbathing and beachcombing. The Children's Pool and nearby shore areas (i.e., shoreline, beaches, and reefs of La Jolla) are used by swimmers, sunbathers, SCUBA divers and snorkelers, shore/ surf fishermen, school classes, tide pool explorers, kayakers, surfers, boogie and skim boarders, seal, sea lion, bird and nature watchers, and for other activities by the general public. Over the last three years (2010 through 2012), an average of 1,556,184 people have visited the Children's Pool annually, and lifeguards have taken an average of 8,147 preventive actions and 86 water rescues annually (CASA, 2010; 2011; 2012). [[Page 28590]] The previous lifeguard facility at Children's Pool, built in 1967, was old, deteriorating from saltwater intrusion, and no longer served the needs of the lifeguard staff or the beach-going public. The structure was condemned on February 22, 2008 due to its deteriorated condition and lack of structural integrity. Because the existing building was no longer viable, a temporary lifeguard tower was moved in. However, a new lifeguard station is required to meet the needs of the lifeguards and the demand for lifeguard services. The overall project includes the demolition of the existing lifeguard station and construction of a new, three-story, lifeguard station on the same site. Demolition and removal of the existing lifeguard station was completed in 2013 to 2014 and construction of the new lifeguard station is expected to be completed in 2015 to 2016. The building contractor utilized excavators, backhoes, concrete saws, and jackhammers for demolishing the previous structure and has hauled the waste materials to an offsite landfill where it was separated into recycled content and waste. During the second year of construction (2014 to 2015) and in the same footprint as the old lifeguard station, the new lifeguard station is being constructed within and adjacent to the previous facility. Rough plumbing and electrical have been laid; the foundation has been poured and some of the steel structure has been erected. The new lifeguard facility is in an optimal location to provide lifeguard service to the community. The new, three-story, building will contain a lower level with beach access level public restrooms and showers, lifeguard lockers, and sewage pump room; a second level with two work stations, ready/observation room, kitchenette, restroom, and first aid station; and a third ``observation'' level (with a 270[deg] view of the beach and nearby reef areas) with a single occupancy observation space, radio storage closet, and exterior catwalk. Interior stairs will link the floors. The existing below grade retaining walls will remain in place and new retaining walls will be constructed for a ramp from street level to the lower level for emergency vehicle beach access and pedestrian access to the lower level restrooms and showers. A 5.6 m (18. 5 ft) wall will be located along the north end of the lower level. The walls will be designed for a minimum design life of 50 years and will not be undermined from ongoing coastal erosion. The walls will not be readily viewed from Coast Boulevard, the public sidewalks or the surrounding community. Enhanced paving, seating and viewing space, drinking fountains, adapted landscaping, and water efficient irrigation will also be included. The City of San Diego has divided the demolition and construction activities are divided into phases: (1.) Mobilization and temporary facilities; (2.) Demolition and site clearing; (3.) Site preparation and utilities; (4.) Building foundation; (5.) Building shell; (6.) Building exterior; (7.) Building interior; (8.) Site improvements; and (9.) Final inspection and demobilization. Demolition and construction of the new lifeguard station was initially estimated to take approximately 7 months (148 actual demolition and construction days) and be completed by December 15, 2013; however, demolition and construction did not start until later than previously planned in June 2013 and June 2014 due to the presence of nesting migratory birds (i.e., Western seagulls [Larus occidentalis] and eggs/chicks). There were additional unexpected delays in the demolition due to unforeseen underground structures at the site making it impossible to finish the project by December 15, 2013 or 2014. The City of San Diego completed phases 1 to 4 during 2013 and 2014. During the 2013 to 2014 construction window, the temporary on-site tower was removed and two temporary towers were installed nearby (one about 500 m [1,640.4 ft] south of the construction site and another about 1,000 m [3,280.8 ft] east of the construction site to serve citizens utilizing the beaches and ocean waters nearby. Construction of phases 5 to 9 would commence in June 2015, thereby necessitating a renewal of the previous IHA. The notice of the final IHA for the City of San Diego's demolition and construction activities that was published in the Federal Register on July 8, 2013 (78 FR 40705) provides a detailed summary on phases 1 to 4 (i.e., mobilization and temporary facilities, demolition and site clearing, site preparation and utilities, and building foundation). Phases 5 to 9 include (phases overlap in time): (5.) Building shell: Pre-cast concrete panel walls, panel walls, rough carpentry and roof framing, wall board, cable railing, metal flashing, and roofing. Equipment--crane, truck, fork lift, and hand/power tools. Timeframe--Approximately 35 days. This phase will be completed in 2015 and has a maximum source level of 100 dB. (6.) Building exterior: Doors and windows, siding paint, light fixtures, and plumbing fixtures. Equipment--truck, hand/power tools, and chop saw. Timeframe--Approximately 4 weeks. This phase will be completed in 2015 and has a maximum source level of 100 dB. (7.) Building interiors: Walls, sewage lift station, rough and finish mechanical electrical plumbing structural (MEPS), wall board, door frames, doors and paint. Equipment--truck, hand/power tools, and chop saw. Timeframe--Approximately 37 days. This phase will be completed in 2015 and has a maximum source level of 100 dB. (8.) Site improvements: Modify storm drain, concrete seat walls, curbs, and planters, fine grade, irrigation, hardscape, landscape, hand rails, plaques, and benches. Equipment--backhoe, truck, hand/power tools, concrete pump/truck, and fork lift. Timeframe--Approximately 37 days. This phase will be completed in 2015 and has a maximum source level of 110 dB. (9.) Final inspection and demobilization: System testing, remove construction equipment, inspection, and corrections. Equipment--truck, and hand/power tools. Timeframe--Approximately 41 days. This phase will be completed in 2015 and has a maximum source level of 100 dB. The exact dates of the planned activities depend on logistics and scheduling. Sound levels during all phases of the project would not exceed 110 dB re 20 [mu]Pa at five feet from the sound sources. The 110 dB estimate is based on equipment manufacturers' estimates obtained by the construction contractor. The City of San Diego utilized published or manufacturers' measurement data based on the proposed equipment (i.e., a backhoe, dump truck, cement pump, air compressor, electric screw guns, jackhammers, concrete saw, chop saw, and hand tools) to be utilized on the project site. Operation of the equipment is the primary activity within the range of construction activities that is likely to affect marine mammals by potentially exposing them to in-air (i.e., airborne or sub-aerial) noise. During the working day, the City of San Diego estimates [[Page 28591]] there would be sound source levels above 90 dB re 20 [mu]Pa, including 65 days of 100 to 110 dB re 20 [mu]Pa at the construction site. On average, pinnipeds will be about 30.5 meters (m) (100 feet [ft]) or more from the construction site with a potential minimum of about 15.2 m (50 ft). During 2013 and 2014, measured sound levels from the demolition equipment reaching the pinnipeds did not exceed approximately 90 dB re 20 [mu]Pa at the haul-out area closest to the demolition and construction and a peak of about 83 dB re 20 [mu]Pa at the mean hauling-out distance (30.5 m). The City of San Diego used the formula and online calculator on the Web site: http://sengpielaudio.com/calculator-distance.htm and measured distances from the sound source to determine the area of potential impacts from in-air sound. Table 1 of the City of San Diego's monitoring report provides mean sound and mean distance from sound sources by the type of equipment and monitoring location. The City of San Diego intends to continue to measure in-air background noise levels in the days immediately prior to, during, and after the construction activities. Additional details regarding the proposed construction activities of the Children's Pool Lifeguard Station can be found in the City of San Diego's IHA application. The IHA application can also be found online at: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. Description of Marine Mammals in the Specified Geographic Area of the Proposed Specified Activity Three species of pinnipeds are known to or could occur in the Children's Pool proposed action area and off the Pacific coastline (see Table 1 below). Pacific harbor seals, California sea lions, and northern elephant seals are the three species of marine mammals that occur and are likely to be found within the immediate vicinity of the activity area. Therefore, these three species are likely to be exposed to effects of the proposed specified activities. A variety of other marine mammals have on occasion been reported in the coastal waters off southern California. These include gray whales, killer whales, bottlenose dolphins, Steller sea lions, northern fur seals, and Guadalupe fur seals. However, none of these species have been reported to occur in the immediate proposed action area of the Children's Pool beach. Therefore, NMFS does not expect, and is not authorizing, incidental take of other marine mammal species from the proposed specified activities. Table 1 below identifies the cetacean and pinnipeds species, their habitat, and conservation status in the nearshore area of the general region of the proposed project area. Table 1--The Habitat, Abundance, and Conservation Status of Marine Mammals Inhabiting the General Region of the Action Area in the Pacific Ocean Off the Southern Coast of California -------------------------------------------------------------------------------------------------------------------------------------------------------- Best population Species Habitat Occurrence Range estimate (minimum) ESA \2\ MMPA \3\ \1\ -------------------------------------------------------------------------------------------------------------------------------------------------------- Mysticetes -------------------------------------------------------------------------------------------------------------------------------------------------------- Gray whale (Eschrichtius Coastal and shelf. Transient during North Pacific 20,990 (20,125).... DL--Eastern NC--Eastern North robustus). season migrations. Ocean, Gulf of Pacific stock. Pacific stock California to EN--Western D--Western North Arctic--Eastern Pacific stock. Pacific stock. North Pacific stock. -------------------------------------------------------------------------------------------------------------------------------------------------------- Odontocetes -------------------------------------------------------------------------------------------------------------------------------------------------------- Killer whale (Orcinus orca).... Widely distributed Varies on inter- Cosmopolitan....... 354 (354)--West NL................ NC annual basis. Coast Transient EN--Southern D--Southern stock. resident Resident and AT1 population. Transient populations. Bottlenose dolphin (Tursiops Offshore, inshore, Limited, small Tropical and 323 (290)-- NL................ NC. truncatus). coastal, population within temperate waters California Coastal estuaries. 1 km of shore. between 45[deg] stock. North and South. Long-beaked common dolphin Inshore........... Common, more Nearshore and 107,016 (76,224)-- NL................ NC. (Delphinus capensis). inshore tropical waters. California stock. distribution, year-round presence. -------------------------------------------------------------------------------------------------------------------------------------------------------- Pinnipeds -------------------------------------------------------------------------------------------------------------------------------------------------------- Pacific harbor seal (Phoca Coastal........... Common............ Coastal temperate 30,968 (27,348)-- NL................ NC. vitulina richardii). to polar regions California stock. in Northern Hemisphere. Northern elephant seal Coastal, pelagic Common............ Eastern and Central 179,000 (81,368)-- NL................ NC. (Mirounga angustirostris). when not North Pacific-- California migrating. Alaska to Mexico. breeding stock. California sea lion (Zalophus Coastal, shelf.... Common............ Eastern North 296,750 (153,337)-- NL................ NC. californianus). Pacific Ocean-- U.S. stock. Alaska to Mexico. [[Page 28592]] Steller sea lion (Eumetopias Coastal, shelf.... Rare.............. North Pacific 72,223 (52,847)-- DL--Eastern U.S. D. jubatus). Ocean--Central Eastern U.S. stock. stock. California to EN--Western U.S. Korea. stock. Northern fur seal (Callorhinus Pelagic, offshore. Rare.............. North Pacific 12,844 (6,722)-- NL................ NC--California ursinus). Ocean--Mexico to California stock. stock. Japan. Guadalupe fur seal Coastal, shelf.... Rare.............. California to Baja 7,408 (3,028)-- T................. D. (Arctocephalus townsendi). California, Mexico. Mexico to California. -------------------------------------------------------------------------------------------------------------------------------------------------------- NA = Not available or not assessed. \1\ NMFS Marine Mammal Stock Assessment Reports \2\ U.S. Endangered Species Act: EN = Endangered, T = Threatened, DL = Delisted, and NL = Not listed. \3\ U.S. Marine Mammal Protection Act: D = Depleted, S = Strategic, and NC = Not classified. The rocks and beaches at or near the Children's Pool in La Jolla, CA, are almost exclusively Pacific harbor seal hauling-out sites. On infrequent occasions, one or two California sea lions or a single juvenile northern elephant seal have been observed on the sand or rocks at or near the Children's Pool (i.e., breakwater ledge/rocks haul-out area, reef haul-out area, and Casa Beach haul-out area). These sites are not usual haul-out locations for California sea lions and/or northern elephant seals. The City of San Diego commissioned two studies of harbor seal abundance trends at the Children's Pool. Both studies reported that appearances of California sea lions and northern elephant seals are infrequent, but not rare at Children's Pool (Yochem and Stewart, 1998; Hanan, 2004; Hanan & Associates, 2011). During 2013, the City of San Diego observed one juvenile and three adult California sea lions and two juvenile northern elephant seals at the Children's Pool. During 2014, the City of San Diego observed 22 California sea lions (during 19 days) and 30 juvenile elephant seals (during 29 days) at the Children's Pool. Adult sea lions were also observed hauling out on rocks and cliffs near the Children's Pool. Pacific Harbor Seal Harbor seals are widely distributed in the North Atlantic and North Pacific. Two subspecies exist in the Pacific Ocean: P. v. stejnegeri in the western North Pacific near Japan, and P. v. richardii in the eastern North Pacific. The subspecies in the eastern North Pacific Ocean inhabits near-shore coastal and estuarine areas from Baja California, Mexico, to the Pribilof Islands in Alaska. These seals do not make extensive pelagic migrations, but do travel 300 to 500 kilometers (km) (162 to 270 nautical miles [nmi]) on occasion to find food or suitable breeding areas (Herder, 1986; Harvey and Goley, 2011). Previous assessments of the status of harbor seals have recognized three stocks along the west coast of the continental U.S.: (1) California, (2) Oregon and Washington outer coast waters, and (3) inland waters of Washington. An unknown number of harbor seals also occur along the west coast of Baja California, at least as far south as Isla Asuncion, which is about 100 miles south of Punta Eugenia. Animals along Baja California are not considered to be a part of the California stock because it is not known if there is any demographically significant movement of harbor seals between California and Mexico and there is no international agreement for joint management of harbor seals. Harbor seal presence at haul-out sites is seasonal with peaks in abundance during their pupping and molting periods. Pupping and molting periods are first observed to the south and progress northward up the coast with time (e.g., January to May near San Diego, April to June in Oregon and Washington) (Jeffries, 1984; Jeffries, 1985; Huber et al., 2001; Hanan, 2004; Hanan & Associates, 2011). In California, approximately 400 to 600 harbor seal haul-out sites are distributed along the mainland coast and on offshore islands, including intertidal sandbars and ledges, rocky shores and islets, and beaches (Harvey et al., 1995; Hanan, 1996; Lowry et al., 2008). Preferred haul-out sites are those that are protected from the wind and waves, and allow access to deep water for foraging (Perrin et al., 2008). Of the known haul-out sites, 14 locations are rookeries (2 locations have multiple sites, for a total of 17 sites) on or near the mainland of California. The population of harbor seals has grown off the U.S. west coast and has led to new haul-out sites being used in California (Hanan, 1996). Harbor seals are one of the most common and frequently observed marine mammals along the coastal environment. Harbor seals have been observed hauling-out and documented giving birth at the Children's Pool since the 1990's (Yochem and Stewart, 1998; Hanan & Associates, 2004). Pacific harbor seals haul-out year- round on beaches and rocks (i.e., breakwater ledge/rocks haul-out area, reef haul-out area, and Casa Beach haul-out area) below the lifeguard tower at Children's Pool. According to Yochem (2005), the Children's Pool beach site is used by harbor seals at all hours of the day and at all tides with the exception of occasional high tide/high swell events in which the entire beach is awash. It is one of the three known haul- out sites for this species in San Diego County. These animals have been observed in this area moving to/from the Children's Pool, exchanging with the rocky reef directly west of and adjacent to the breakwater and with Seal Rock, which is about 150 m (492 ft) west of the Children's Pool. Harbor seals have also been reported on the sandy beach just southwest of the Children's Pool. At low tide, additional space for hauling-out is available on the rocky reef areas outside the retaining wall and on beaches immediately southward. Haul-out times vary by time of year, from less than an hour to many [[Page 28593]] hours. There have been no foraging studies at this site, but harbor seals have been observed in nearshore waters and kelp beds nearby, including La Jolla Cove. The Children's Pool area is the only rookery in San Diego County and the only mainland rookery on the U.S. west coast between the border of Mexico and Point Mugu in Ventura County, CA (321.9 km [200 miles]). The number of harbor seals in this area has increased since 1979, and seals are documented to give birth on these beaches during December through May (Hanan, 2004; Hanan & Associates, 2011). The official start to pupping season is December 15. Females in an advanced stage of pregnancy begin to show up on the Children's Pool beach by late October to early November. Several studies have identified harbor seal behavior and estimated harbor seal numbers including patterns of daily and seasonal area use (Yochem and Stewart, 1998; Hanan & Associates, 2011; Linder, 2011). Males, females, and pups (in season) of all ages and stages of development are observed at the Children's Pool and adjacent areas. In southern California, a considerable amount of information is known about the movements and ecology of harbor seals, but population structure in the region is not as well known (Stewart and Yochem, 1994, 2000; Keper et al., 2005; Hanan & Associates, 2011). Linder (2011) suggests that this population moves along the California coast and the beach at Children's Pool is part of a ``regional network of interconnected'' haul-out and pupping sites. Harbor seals often haul- out in protected bays, inlets, and beaches (Reeves et al., 1992). At and near the Children's Pool, harbor seals haul-out on the sand, rocks, and breakwater base in numbers of 0 to 15 harbor seals to a maximum of about 150 to 250 harbor seals depending on the time of day, season, and weather conditions (Hanan, 2004, Hanan & Associates, 2011; Linder, 2011). Because space is limited behind the breakwater at the Children's Pool, Linder (2011) predicted that it is unlikely that numbers will exceed 250 harbor seals. Based on monitoring from a camera, Western Alliance for Nature (WAN) reported that during the month of May 2013 up to 302 harbor seals were documented resting on the Children's Pool beach at any given time, with additional harbor seals on the rocks and in the water (Wan, personal communication). Almost every day, except for weekends, over 250 individual harbor seals were present on the beach. During the months of September 2012 to January 2013, the average number of harbor seals on the beach varied from 83 to 120 animals before people entered the beach or when people were behind the rope. During this same period, when people were on the beach and/or across the rope, the average number of harbor seals varied from 7 to 27. The City of San Diego observed 12 counts totaling more than 200 and a maximum of 238 animals during the 2014 to 2015 construction window. The weather (i.e., wind and/or rain) and the proximity of humans to the beach likely affect the presence of harbor seals on the beach. Radio-tagging and photographic studies have revealed that only a portion of seals utilizing a hauling-out site are present at any specific moment or day (Hanan, 1996, 2005; Gilbert et al., 2005; Harvey and Goley, 2011; and Linder, 2011). These radio-tagging studies indicate that harbor seals in Santa Barbara County haul-out about 70 to 90% of the days annually (Hanan, 1996). The City of San Diego expects harbor seals to behave similarly at the Children's Pool. Tagged and branded harbor seals from other haul-out sites have been observed by Dr. Hanan at the Children's Pool. For example, harbor seals with red- stained heads and coats, which are typical of some harbor seals in San Francisco Bay have been observed at Children's Pool, indicating that seals tagged at other locations and haul-out sites visit the site. A few seals have been tagged at the Children's Pool and there are no reports of these tagged animals at other sites (probably because of very low re-sighting efforts and a small sample size [10 individuals radio-tagged]), which may indicate a degree of site-fidelity (Yochem and Stewart, 1998). These studies further indicate that seals are constantly moving along the coast including to/from the offshore islands and that there may be as many as 600 individual harbor seals using Children's Pool during a year, but certainly not all at one time. The City of San Diego has fitted a polynomial curve to the number of expected harbor seals hauling-out at the Children's Pool by month (see Figure 1 of the IHA application and Figure 2 below) based on counts at the Children's Pool by Hanan (2004), Hanan & Associates (2011), Yochem and Stewart (1998), and the Children's Pool docents (Hanan, 2004). A three percent annual growth rate of the population was applied to Yochem and Stewart (1998) counts to normalize them to Hanan & Associates and docent counts in 2003 to 2004. Based on monitoring during 2013 to 2014, Dr. Hanan estimates that similar numbers of harbor seals hauling-out at Children's Pool during 2011 and would expect similar numbers in 2015 to 2016. A complete count of all harbor seals in California is impossible because some are always away from the haul-out sites. A complete pup count (as is done for other pinnipeds in California) is also not possible because harbor seals are precocial, with pups entering the water almost immediately after birth. Population size is estimated by counting the number of seals ashore during the peak haul-out period (May to July) and by multiplying this count by a correction factor equal to the inverse of the estimated fraction of seals on land. Based on the most recent harbor seal counts (2009) and including a revised correction factor, the estimated population of harbor seals in California is 30,196 individuals (NMFS, 2011), with an estimated minimum population of 26,667 for the California stock of harbor seals. Counts of harbor seals in California increased from 1981 to 2004. The harbor seal is not listed under the ESA and the California stock is not considered depleted or strategic under the MMPA (Carretta et al., 2010). California Sea Lion The California sea lion is a full species, separate from the Galapagos sea lion (Zalophus wollebaeki) and the extinct Japanese sea lion (Zalophus japonicus) (Brunner, 2003; Wolf et al., 2007; Schramm et al., 2009). This species of sea lion is found from southern Mexico to southwestern Canada. The breeding areas of the California sea lion are on islands located in southern California, western Baja California, and the Gulf of California. A genetic analysis of California sea lions identified five genetically distinct geographic populations: (1) Pacific Temperate, (2) Pacific Subtropical, (3) Southern Gulf of California, (4) Central Gulf of California, and (5) Northern Gulf of California (Schramm et al., 2009). In that study, the Pacific Temperate population included rookeries within U.S. waters and the Coronados Islands just south of U.S./Mexico border. Animals from the Pacific Temperate population range north into Canadian waters, and movement of animals between U.S. waters and Baja California waters has been documented, though the distance between the major U.S. and Baja California rookeries is at least 740.8 km (400 nmi). Males from western Baja California rookeries may spend most of the year in the United States. The entire California sea lion population cannot be counted because all age and sex classes are never ashore at the same time. In lieu of counting all sea lions, pups are counted during the [[Page 28594]] breeding season (because this is the only age class that is ashore in its entirety), and the numbers of births is estimated from the pup count. The size of the population is then estimated from the number of births and the proportion of pups in the population. Censuses are conducted in July after all pups have been born. There are no rookeries at or near the Children's Pool, although in the past two years births have been reported at La Jolla Cove (about 0.75 km [0.47 miles] east of Children's Pool). Population estimates for the U.S. stock of California sea lions range from a minimum of 153,337 to an average estimate of 296,750 animals. They are considered to be at carrying capacity of the environment. The California sea lion is not listed under the ESA and the U.S. stock is not considered depleted or strategic under the MMPA. Northern Elephant Seal Northern elephant seals breed and give birth in California (U.S.) and Baja California (Mexico), primarily on offshore islands (Stewart et al., 1994) from December to March (Stewart and Huber, 1993). Spatial segregation in foraging areas between males and females is evident from satellite tag data (Le Beouf et al., 2000). Males migrate to the Gulf of Alaska and western Aleutian Islands along the continental shelf to feed on benthic prey, while females migrate to pelagic areas in the Gulf of Alaska and the central North Pacific to feed on pelagic prey (Le Beouf et al., 2000). Adults return to land between March and August to molt, with males returning later than females. Adults return to their feeding areas again between their spring/summer molting and their winter breeding seasons. Populations of northern elephant seals in the U.S. and Mexico have recovered after being nearly hunted to extinction (Stewart et al., 1994). Northern elephant seals underwent a severe population bottleneck and loss of genetic diversity when the population was reduced to an estimated 10 to 30 individuals (Hoelzel et al., 2002). However, movement and genetic exchange continues between rookeries when they start breeding (Huber et al., 1991). The California breeding population is now demographically isolated from the Baja California population. The California breeding population is considered in NMFS's stock assessment report to be a separate stock. A complete population count of elephant seals is not possible because all age classes are not ashore simultaneously. Elephant seal population size is typically estimated by counting the number of pups produced and multiplying by the inverse of the expected ratio of pups to total animals (McCann, 1985). Based on counts of elephant seals at U.S. rookeries in 2010, Lowry et al. (2014) reported that 40,684 pups were born. Lowry et al. (2014) applied a multiplier of 4.4 to extrapolate from total pup counts to a population estimate of approximately 179,000 elephant seals. This multiplier is derived from life tables based on published elephant seal fecundity and survival rates, and reflects a population with approximately 23% pups (Cooper and Stewart, 1983; Le Boeuf and Reiter, 1988; Hindell 1991; Huber et al., 1991; Reiter and Le Boeuf, 1991; Clinton and Le Boeuf, 1993; Le Boeuf et al., 1994; Pistorius and Bester, 2002; McMahon et al., 2003; Pistorius et al., 2004; Condit et al., 2014). The minimum population size for northern elephant seals in 2010 can be estimated very conservatively as 81,368, which is equal to twice the observed pup count (to account for the pups and their mothers). The population is reported to have grown at 3.8% annually since 1988 (Lowry et al., 2014). Northern elephant seals are not listed under the ESA and are not considered as depleted or a strategic stock under the MMPA. Further information on the biology and local distribution of these marine mammal species and others in the region can be found in the City of San Diego's IHA application, which is available upon request (see ADDRESSES), and the NMFS Marine Mammal Stock Assessment Reports, which are available online at: http://www.nmfs.noaa.gov/pr/sars/. Potential Effects of the Proposed Specified Activity on Marine Mammals This section includes a summary and discussion of the ways that the types of stressors associated with the proposed specified activity (e.g., construction equipment and activities) have been observed to impact marine mammals. This discussion may also include reactions that we consider to rise to the level of a take and those that we do not consider to rise to the level of take (for example, with acoustics), we may include a discussion of studies that showed animals not reacting at all to sound or exhibiting barely measureable avoidance). This section is intended as a background of potential effects and does not consider either the specific manner in which this activity will be carried out or the mitigation that will be implemented, or how either of those will shape the anticipated impacts from this specific activity. The ``Estimated Take by Incidental Harassment'' section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The ``Negligible Impact Analysis'' section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the ``Estimated Take by Incidental Harassment'' section, the ``Proposed Mitigation'' section, and the ``Anticipated Effects on Marine Mammal Habitat'' section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks. When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data, Southall et al. (2007) designate ``functional hearing groups'' for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The functional groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their functional range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their functional hearing range):Low-frequency cetaceans (13 species of mysticetes): functional hearing is estimated to occur between approximately 7 Hz and 30 kHz; Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): functional hearing is estimated to occur between approximately 150 Hz and 160 kHz; High-frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia spp., the franciscana (Pontoporia blainvillei), and four species of cephalorhynchids): functional hearing is estimated to occur between approximately 200 Hz and 180 kHz; and Phocid pinnipeds in water: functional hearing is estimated to occur between approximately 75 Hz and 100 kHz; Otariid pinnipeds in water: functional hearing is estimated to occur between approximately 100 Hz and 40 kHz. As mentioned previously in this document, 3 marine mammal species (0 [[Page 28595]] cetacean and 3 pinniped species) are likely to occur in the proposed action area. Of the 3 pinniped species likely to occur in the City of San Diego's proposed action area, 2 are classified as phocid pinnipeds (i.e., Pacific harbor seal and northern elephant seal) and, 1 is classified as an otariid pinniped (i.e., California sea lion) (Southall et al., 2007). The City of San Diego requests authorization for Level B harassment of these 3 species of marine mammals (i.e., Pacific harbor seals, California sea lions, and northern elephant seals) incidental to the use of equipment and its propagation of in-air noise from various acoustic mechanisms associated with the construction activities of the Children's Pool Lifeguard Station at La Jolla, CA discussed above. NMFS considers a species' functional hearing group when we analyze the effects of exposure to sound on marine mammals. The notice of the proposed IHA (79 FR 8160, February 11, 2014) included a discussion of the effects of in-air sounds from construction activities on pinnipeds, which included tolerance, behavioral disturbance, and hearing impairment. NMFS refers readers to the City of San Diego's IHA application and NMFS's EA for additional information on the behavioral reactions (or lack thereof) by all types of marine mammals to high levels of in-air sounds. The potential effects to marine mammals described in this section of the document generally do not take into consideration the monitoring and mitigation measures described later in this document (see the ``Proposed Mitigation'' and ``Proposed Monitoring and Reporting'' sections), which are designed to effect the least practicable impact on affected marine mammal species or stocks. Anticipated Effects on Marine Mammal Habitat The rocks and beaches at or near the Children's Pool in La Jolla, CA, are almost exclusively Pacific harbor seal hauling-out sites. Harbor seals have been observed hauling-out and documented giving birth at the Children's Pool since the 1990's (Yochem and Stewart, 1998; Hanan & Associates, 2004). It is one of the three known haul-out sites for this species in San Diego County and is the only rookery in San Diego County and the only mainland rookery on the U.S. west coast between the border of Mexico and Point Mugu in Ventura County, CA. More information on this population of Pacific harbor seals can be found in the ``Description of Marine Mammals in the Specified Geographic Area of the Proposed Specified Activity.'' The primary anticipated adverse impacts upon habitat consist of temporary changes to the in-air acoustic environment, as detailed in the notice of the proposed IHA (79 FR 8160, February 11, 2014). These changes are minor, temporary, and limited in duration to the period of the construction activities. The temporary impacts on the acoustic environment are not expected to have any permanent effects on the species or stock populations of marine mammals occurring at the Children's Pool. All proposed construction activities are beyond or outside the habitat areas where harbor seals and other pinnipeds are found. Visual barriers would be erected to shield construction activities from the visual perception and potentially dampen acoustic effects on pinnipeds. Because the public occasionally harasses the harbor seals with various activities, the NMFS-qualified PSO monitoring the site would make observations and attempt to distinguish and attribute any observed harassment to the public or to the proposed construction activities and give all details in the observation report. If any short-term, temporary impacts to habitat due to sounds or visual presence of equipment and workers did occur, the City of San Diego would expect pinniped behavior to return to pre-construction conditions soon after the activities are completed, which is anticipated to occur before the next pupping season (Hanan & Associates, 2011). The area of habitat affected is small and the effects are localized and temporary; thus there is no reason to expect any significant reduction in habitat available for foraging and other habitat uses. No aspect of the project is anticipated to have any permanent effect on the location or use of pinniped haul-outs or related habitat features in the area (Hanan & Associates, 2011). Further, the site is already very disturbed by member of the public who come to the area during the day and night to view the pinnipeds. The City of San Diego and NMFS do not project any loss or modification of physical habitat for these species. Any potential temporary loss or modification of habitat due to in-air noise or visual presence of equipment and workers during the proposed construction activities is expected by the City of San Diego and NMFS to be quickly restored after construction activities end and all equipment and barriers are removed. For these reasons, NMFS anticipates that the proposed action would result in no impacts to marine mammal habitat beyond rendering the areas immediately around the Children's Pool less desirable during construction activities. Proposed Mitigation In order to issue an Incidental Take Authorization (ITA) under section 101(a)(5)(D) of the MMPA, NMFS must prescribe, where applicable, the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant). The City of San Diego has established the Children's Pool as a shared beach for pinnipeds and people (except during pupping season when the beach has been closed to the public). In the past, during the pupping season, a rope was placed along the upper part of the beach with signage to inform and designate how close people can come to the haul-out area and the pinnipeds. The timeframe for the rope has been extended so that it is now present year-round. The construction activities are planned to occur outside the harbor seal pupping and weaning periods. The City of San Diego would implement the following proposed mitigation measures to help ensure the least practicable impact on marine mammals: (1) Prohibition of construction during pupping season; (2) Daily construction timing; (3) Construction of visual and acoustic barriers; (4) Use of Protected Species Observers; (5) Establishment of buffer zones; and (6) Potential abandonment survey. Visual and acoustic barriers were constructed in 2013 to mitigate the effects of the construction activities. The visual and acoustic barriers were constructed of plywood, 1.2 to 2.4 m (4 to 8 ft) tall stood on end and held up by wood posts. The sheets of plywood were stood upright and held up with two wooden two by fours hinged to the top of the frame, so they could be collapsed and moved depending on the location and need for access by demolition and construction equipment. The barriers were placed at the site with input from NMFS Southwest Regional Office (SWRO) personnel so that they will hide as advantageously as possible the construction activities that may be seen by pinnipeds. The barriers appear to dampen the acoustic sound sources, but do not prevent sound from permeating the environment. The [[Page 28596]] barriers also appear to hide and reduce visual cues that may stimulate behavioral reactions from the pinnipeds on the beach below. As the site is a beach with construction along the cliff and on flat areas above the cliff, a complete barrier cannot be constructed to hide all construction activities for the project. Once the walls of the lifeguard station's building are in place, much of the construction activities will take place above the Children's Pool beach (i.e., out of sight) as well as inside the building (i.e., a visual and partial sound barrier). There would be no activities in the ocean or closer to the water's edge and since harbor seals mate underwater in the ocean, there will be no impacts on mating activities. California sea lions and northern elephant seals are such infrequent users of this area and their rookeries are so far away (at least 104.6 km [65 miles] at offshore islands) that there will be no adverse impact on these species. As part of the public comment process for the issuance of the previous 2013 IHA, NMFS modified several of the monitoring and mitigation measures included in the proposed IHA (78 FR 25958, May 3, 2013) for practicability reasons, and also included several additional measures in the final IHA (78 FR 40705, July 8, 2013). These included changing the pupping season from December 15th to May 15th and prohibiting construction activities during this time; extending construction activities from 7:00 a.m. to 7:00 p.m. to help assure that more work would be completed during the 2013 construction window; continuing monitoring for 60 days following the end of construction activities; and triggering a shut-down of construction activities in the unexpected event of abandonment of the Children's Pool site. The mitigation measure on scheduling the heaviest construction activities (with the highest sound levels) during the annual period of lowest haul-out occurrence (October to November) was originally included in the City of San Diego's Mitigated Negative Declaration when it was anticipated that the City of San Diego would obtain an IHA in the summer of 2012 and begin demolition and construction activities in the fall of 2012. This requirement has been removed because it is no longer practicable due to logistics, scheduling and to allow the planned activities to be completed before the next pupping season. The activities proposed by the applicant includes a variety of measures calculated to minimize potential impacts on marine mammals, including: Prohibition of Construction During Pupping Season Construction shall be prohibited during the Pacific harbor seal pupping season (December 15th to May 15th) and for an additional two weeks thereafter to accommodate lactation and weaning of late season pups. Thus, construction shall be prohibited from December 15th to June 1st. Daily Construction Timing Construction activities shall be scheduled, to the maximum extent practicable, during the daily period of lowest haul-out occurrence, from approximately 8:30 a.m. to 3:30 p.m. However, construction activities may be extended from 7 a.m. to 7 p.m. to help assure that the project can be completed during the 2015 construction window. Harbor seals typically have the highest daily or hourly haul-out period during the afternoon from 3 p.m. to 6 p.m. Construction of Visual and Acoustic Barriers A visual and acoustic barrier would be erected and maintained for the duration of the project to shield construction activities from beach view. The temporary barrier shall consist of \1/2\ to \3/4\ inch (1.3 to 1.9 centimeters [cm]) plywood constructed 1.8 to 2.4 m (6 to 8 ft) high depending on the location. The City of San Diego does not believe that a complete barrier can be constructed to hide all of the proposed construction activities. Once the walls of the lifeguard station building are in place, much of the proposed construction activities would take place on the bluff above the beach (thus out of sight) and inside the building, which would provide a visual and partial sound barrier. Protected Species Observers Trained PSOs would be used to detect, document, and minimize impacts (i.e., possible shut-down of noise-generating operations [turning off the equipment so that in-air sounds associated with construction no longer exceed levels that are potentially harmful to marine mammals]) to marine mammals. More information about this measure is contained in the ``Proposed Monitoring'' section (below). Establishment of Buffer Zones The City of San Diego shall establish buffer zones (i.e., where sound pressure levels are at or above 90 dB re 20 [mu]Pa for harbor seals and/or at or above 100 dB re 20 [mu]Pa for all pinniped species except harbor seals [for in-air noise]) around the construction activities so that in-air sounds associated with the construction activities no longer exceed levels that are potentially harmful to marine mammals. Timing Constraints for In-Air Noise To minimize in-air noise impacts on marine mammals, construction activities shall be limited to the period when the species of concern would be least likely to be in the project area. The construction window for construction activities shall be from June 1 to December 15, 2015. The IHA may extend to June 1 through June 27, 2016 to finish the construction activities if needed. Avoiding periods when the highest number of marine mammal individuals are in the action area is another mitigation measure to protect marine mammals from the proposed construction activities. Potential Abandonment Survey After the first two months of monitoring during construction activities, the City of San Diego will take the mean number of observed harbor seals at the Children's Pool in a 24-hour period across that two months and compare it to the mean of the lower 95 percent confidence interval in Figure 1 (see below). If the observed mean is lower, the City of San Diego would shut-down construction activities and work with NMFS and other harbor seal experts (e.g., Mark Lowry, Dr. Sarah Allen, Dr. Pamela Yochem, and/or Dr. Brent Stewart) to develop and implement a revised mitigation plan to further reduce the number of takes and potential impacts. Once a week every week thereafter, the City of San Diego will take the same mean of observed harbor seals across the previous three tide cycles (a tide cycle is approximately 2 weeks) and compare it to the 95% lower confidence interval in Figure 1 for the same time period. If the observed mean is lower, the City of San Diego would shut-down and take the action described above. If abandonment of the site is likely, monitoring would be expanded away from the Children's Pool to determine if animals have been temporarily displaced to known haul-out sites in the southern California area (e.g., north end of Torrey Pines, cave on the exposed ocean side of Point Loma, etc.). For the purpose of this action, NMFS will consider the Children's Pool site to possibly be abandoned if zero harbor seals are present each day during the daytime and nighttime hours for at least three tide cycles (a tide cycle is approximately 2 weeks), but this cannot be confirmed until observations continue to be zero during a full pupping and molting season. [[Page 28597]] [GRAPHIC] [TIFF OMITTED] TN19MY15.000 More information regarding the City of San Diego's monitoring and mitigation measures for the proposed construction activities at the Children's Pool Lifeguard Station can be found in the IHA application. Proposed Mitigation Conclusions NMFS has carefully evaluated the applicant's mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. NMFS's evaluation of potential measures included consideration of the following factors in relation to one another: The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals; The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and The practicability of the measure for applicant implementation, including consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the activity. Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below: (1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal). (2) A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels from construction equipment, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only). (3) A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels from construction equipment, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only). (4) A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels from construction equipment, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only). (5) Avoidance of minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time. (6) For monitoring directly related to mitigation--an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation. [[Page 28598]] Based on NMFS's evaluation of the applicant's proposed measures, as well as other measures considered by NMFS or recommended by the public, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Proposed Monitoring and Reporting In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must, where applicable, set forth ``requirements pertaining to the monitoring and reporting of such taking.'' The MMPA implementing regulations at 50 CFR 216.104 (a)(13) require that requests for ITAs include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals: (1) An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below; (2) An increase in our understanding of how many marine mammals are likely to be exposed to levels from construction equipment that we associate with specific adverse effects, such as behavioral harassment, TTS or PTS; (3) An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods: Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information); Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict receive level, distance from the source, and other pertinent information); Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli; (4) An increased knowledge of the affected species; and (5) An increase in our understanding of the effectiveness of certain mitigation and monitoring measures. Proposed Monitoring The City of San Diego has developed a monitoring plan (see Appendix I, Mitigated Negative Declaration in the IHA application) based on discussions between the project biologist, Dr. Doyle Hanan, and NMFS biologists. The plan has been vetted by City of San Diego planners and reviewers. The plan has been formally presented to the public for review and comment. The City of San Diego has responded in writing and in public testimony (see City of San Diego Council Hearing, December 14, 2011) to all public concerns. The monitoring plan involves surveying prior to construction activities, monitoring during construction activities by NMFS-approved PSOs with high-resolution binoculars and handheld digital sound level meters (measuring devices in the 30 to 130 dB re 20 [micro]Pa range), and post-construction monitoring. The City of San Diego would include sound measurements at and near the construction site in their initial survey prior to the activities as a background and baseline for the project. While no specific acoustic study is planned, the City of San Diego's Mitigated Negative Declaration states that marine mammal monitoring shall be conducted for three to five days prior to construction and shall include hourly systematic counts of pinnipeds using the beach, Seal Rock, and associated reef areas. Monitoring three to five days prior to construction will provide baseline data regarding recent haul-out behavior and patterns as well as background noise levels near the time of the proposed construction activities. During the proposed construction activities, monitoring shall assess behavior and potential behavioral responses to construction noise and activities. PSOs would observe the proposed construction activities from a station along the breakwater wall and from the base of the cliff below the construction area. PSOs would be on site approximately 30 minutes before the start of proposed construction activities and would remain on site until 30 minutes after activities have ceased. Visual digital recordings and photographs shall be used to document individuals and behavioral responses to construction. The City of San Diego (i.e., PSOs) plans to make hourly counts of the number of pinnipeds present and record sound or visual events that result in behavioral responses and changes, whether during construction or from public stimuli. During these events, pictures and video will also be taken when possible. The ``Mitigated Negative Declaration'' states ``monitoring shall assess behavior and potential behavioral responses to construction noise and activities. Visual digital recordings and photographs shall be used to document individuals and behavioral responses to construction.'' Monitors would have authority to stop construction as necessary depending on sound levels, pinniped presence, and distance from sound sources. Daily monitoring reports would be maintained for periodic summary reports to the City of San Diego and to NMFS. Observations would be entered into and maintained on Hanan & Associates computers. The City of San Diego plans to follow the reporting requirements in the Mitigated Negative Declaration, which states that ``the biologist shall document field activity via the Consultant Site Visit Record. The Consultant Site Visit Record shall be either emailed or faxed to the City of San Diego's Mitigation Monitoring Coordination process (MMC) on the 1st day of monitoring, the 1st week of each month, the last day of monitoring, and immediately in the case of any undocumented discovery. The project biologist shall submit a final construction monitoring report to MMC within 30 days of construction completion.'' The MMC ``coordinates the monitoring of development projects and requires that changes are approved and implemented to be in conformance with the permit requirements and to minimize any damage to the environment.'' These documents will also be sent to NMFS. Finally, the City of San Diego has modified its monitoring program to include 60 days of monitoring post-construction activities. Following construction, the City of San Diego would have a program of onsite PSOs that would randomly select a day per week to monitor. NMFS notes that the WAN's La Jolla Harbor Seal Webcam was attached to the old (now demolished) lifeguard station and is no longer available online (http://www.wanconservancy.org/la_jolla_harbor_seal_earthcam.htm). The City of San Diego has stated that there is no suitable place to mount the camera at the construction site. Therefore, the City of San Diego cannot do periodic checks using the webcam for monitoring purposes as required by the 2013 IHA. [[Page 28599]] However, the camera was not expected to replace NMFS-qualified PSOs at the site making accurate counts, measuring sound levels and observing the public and the construction, as well as the harbor seals. In the old camera view, a person may have been able to see visual evidence of Level B harassment but probably would not have been able to distinguish between harassment from construction activities and harassment from the public since the camera had a limited scope and only showed the Children's Pool beach and pinnipeds (usually a specific portion of the beach, but not the reef nor nearby beaches). Consistent with NMFS procedures, the following marine mammal monitoring and reporting shall be performed for the proposed action: (1) The PSO shall be approved by NMFS prior to construction activities. (2) The NMFS-approved PSO shall attend the project site prior to, during, and after construction activities cease each day throughout the construction window. (3) The PSO shall search for marine mammals within the Children's Pool area. (4) The PSO shall be present during construction activities to observe for the presence of marine mammals in the vicinity of the specified activity. All such activity would occur during daylight hours (i.e., 30 minutes after sunrise and 30 minutes before sunset). If inclement weather limits visibility within the area of effect, the PSO would perform visual scans to the extent conditions allow. (5) If marine mammals are sighted by the PSO within the acoustic threshold areas, the PSO shall record the number of marine mammals within the area of effect and the duration of their presence while the noise-generating activity is occurring. The PSO would also note whether the marine mammals appeared to respond to the noise and, if so, the nature of that response. The PSO shall record the following information: Date and time of initial sighting, tidal stage, weather conditions, Beaufort sea state, species, behavior (activity, group cohesiveness, direction and speed of travel, etc.), number, group composition, distance to sound source, number of animals impacted, construction activities occurring at time of sighting, and monitoring and mitigation measures implemented (or not implemented). The observations would be reported to NMFS. (6) A final report would be submitted summarizing all in-air acoustic effects from construction activities and marine mammal monitoring during the time of the authorization, and any long term impacts from the project. A written log of dates and times of monitoring activity will be kept. The log shall report the following information: Time of observer arrival on site; Time of the commencement of in-air noise generating activities, and description of the activities; Distances to all marine mammals relative to the sound source; Distances from the sound meter to each sound-producing activity when conducting sound measurements; For harbor seal observations, notes on seal behavior during noise-generating activity, as described above, and on the number and distribution of seals observed in the project vicinity; For observations of all marine mammals other than harbor seals, the time and duration of each animal's presence in the project vicinity; the number of animals observed; the behavior of each animal, including any response to noise-generating activities; Time of the cessation of in-air noise generating activities; and Time of observer departure from site. All monitoring data collected during construction would be included in the biological monitoring notes to be submitted. A final report summarizing the construction monitoring and any general trends observed would also be submitted to NMFS within 90 days after monitoring has ended during the period of the lifeguard station construction. Proposed Reporting The City of San Diego would notify NMFS Headquarters and the NMFS Southwest Regional Office prior to initiation of the construction activities. A draft final report must be submitted to NMFS within 90 days after the conclusion of the construction activities of the Children's Pool Lifeguard Station. The report would include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA, including dates and times of operations and all marine mammal sightings (dates, times, locations, species, behavioral observations [activity, group cohesiveness, direction and speed of travel, etc.], tidal stage, weather conditions, Beaufort sea state and wind force, associated construction activities). A final report must be submitted to the Regional Administrator within 30 days after receiving comments from NMFS on the draft final report. If no comments are received from NMFS, the draft final report would be considered to be the final report. While the IHA does not authorize injury (i.e., Level A harassment), serious injury, or mortality, should the applicant, contractor, monitor or any other individual associated with the construction project observe an injured or dead marine mammal, the incident (regardless of cause) will be reported to NMFS as soon as practicable. The report should include species or description of animal, condition of animal, location, time first found, observed behaviors (if alive) and photo or video, if available. In the unanticipated event that the City of San Diego discovers a live stranded marine mammal (sick and/or injured) at Children's Pool, they shall immediately contact Sea World's stranded animal hotline at 1-800-541-7235. Sea World shall also be notified if a dead stranded pinniped is found so that a necropsy can be performed. In all cases, NMFS shall be notified as well, but for immediate response purposes, Sea World shall be contacted first. Reporting Prohibited Take--In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this IHA, such as an injury (Level A harassment), serious injury, or mortality, the City of San Diego shall immediately cease the specified activities and immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to [email protected], [email protected], and the West Coast Regional Stranding Coordinator (562-980-3230). The report must include the following information: Time, date, and location (latitude/longitude) of the incident; The type of activity involved; Description of the circumstances during and leading up to the incident; Status of all sound source use in the 24 hours preceding the incident; water depth; environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); Description of marine mammal observations in the 24 hours preceding the incident; species identification or description of the animal(s) involved; The fate of the animal(s); and photographs or video footage of the animal (if equipment is available). Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with the City of San Diego to determine the action necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The City of San Diego may not resume its activities until notified by NMFS via letter, email, or telephone. [[Page 28600]] Reporting an Injured or Dead Marine Mammal with an Unknown Cause of Death--In the event that the City of San Diego 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), the City of San Diego would immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401, and/or by email to [email protected], [email protected], and the NMFS West Coast Regional Office (1-866-767-6114), and/or to the West Coast Regional Stranding Coordinator (562-980-3230). The report must include the same information identified above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS would work with the City of San Diego to determine whether modification of the activities is appropriate. Reporting an Injured or Dead Marine Mammal Not Related to the Activities--In the event that the City of San Diego 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 (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the City of San Diego shall report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401, and/or by email to [email protected], [email protected], and the NMFS West Coast Regional Office (1-866-767-6114) and/or to the West Coast Regional Stranding Coordinator (562-980-3230) within 24 hours of the discovery. The City of San Diego shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Activities may continue while NMFS reviews the circumstances of the incident. Monitoring Results From Previously Authorized Activities 2013 to 2014 Hanan & Associates, Inc., on behalf of the City of San Diego, conducted marine mammal and in-air sound monitoring at six locations during demolition and construction activities at the Children's Pool Lifeguard Station in La Jolla, California from June 3, 2013 to February 12, 2014. Demolition and construction activities began on July 10, 2013 and were halted for the Pacific harbor seal pupping season (December 15, 2013 to June 1, 2014). During 115 days of visual and acoustic observations, Hanan & Associates counted a total of 61,631 Pacific harbor seals and 26,037 people. During the 2013 demolition and construction activities, Hanan & Associates observed a total of 15,673 takes by Level B harassment (i.e., alerts, movements, and flushes) that could be attributed to demolition and construction activities (5,095 takes), the general public (8,639 takes), and other sources (1,939 takes). As of April 15, 2014, at least 60 harbor seal pups (including 2 still births) have been born at the Children's Pool and there has been no indication of abandonment. In addition to the Pacific harbor seal sightings, PSOs recorded 11 sightings of cetaceans (gray whales and bottlenose dolphins), 4 sightings of California sea lions (1 juvenile, 3 adult), and 2 northern elephant seals (both juveniles) at the Children's Pool. Hanan & Associates recorded mean in-air sound levels of 69.2 dB re 20 [mu]Pa (range of 55.6 to 93.7 dB re 20 [mu]Pa) during non-demolition and construction activities and 70.3 dB re 20 [mu]Pa (range of 50.7 to 103.1 dB re 20 [mu]Pa) during demolition and construction activities. During 2013, measured sound levels from the demolition equipment reaching the pinnipeds did not exceed approximately 90 dB re 20 [mu]Pa at the haul-out area closest to the demolition and construction activities, nor did they exceed a peak of about 83 dB re 20 [mu]Pa at the mean hauling-out distance (30.5 m). 2014 to 2015 Hanan & Associates, Inc., on behalf of the City of San Diego, conducted marine mammal and in-air sound monitoring at seven locations during demolition and construction activities at the Children's Pool Lifeguard Station in La Jolla, California from August 6, 2014 to March 15, 2015. Construction activities began on August 6, 2014 and were halted for the Pacific harbor seal pupping season (December 15, 2014 to June 1, 2015). During 127 days of visual and acoustic observations, Hanan & Associates counted a total of 63,598 Pacific harbor seals and 27,844 people. During the 2014 demolition and construction activities, Hanan & Associates observed a total of 20,259 takes by Level B harassment (i.e., alerts, movements, and flushes) that could be attributed to demolition and construction activities (7,424 takes), the general public (10,000 takes), and other sources (2,835 takes). As of March 13, 2015, at least 60 harbor seal pups (including 6 still or premature births) have been born at the Children's Pool and there has been no indication of abandonment. In addition to the Pacific harbor seal sightings, PSOs recorded 24 sightings of cetaceans (gray whales, common and bottlenose dolphins), 366 sightings of California sea lions (at Seal Rock, Children's Pool beach, South Casa Beach, and on the reef), and 1 northern elephant seals (1 juvenile on Children's Pool beach) at the Children's Pool. One dead adult and one dead juvenile California sea lion were sighted on the Children's Pool beach after the start of the beach closure and after the construction activities stopped for the pupping season. These strandings were reported to NMFS. Hanan & Associates recorded mean in-air sound levels of 68.9 dB re 20 [mu]Pa (range of 51.5 to 97.2 dB re 20 [mu]Pa) during non- construction activities and 71.3 dB re 20 [mu]Pa (range of 49.4 to 102.7 dB re 20 [mu]Pa) during construction activities. During 2014, measured sound levels from the construction equipment reaching the pinnipeds did not exceed approximately 90 dB re 20 [mu]Pa at the haul- out area closest to the construction activities. More information on the monitoring results from the City of San Diego's previous demolition and construction activities at the La Jolla Children's Pool Lifeguard Station can be found in the final monitoring reports. The 2013 to 2014 and 2014 to 2015 monitoring reports can be found online at: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm#childrenspool. [[Page 28601]] [GRAPHIC] [TIFF OMITTED] TN19MY15.001 Estimated Take by Incidental Harassment Except with respect to certain activities not pertinent here, the MMPA defines ``harassment'' as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. [[Page 28602]] Table 2--NMFS's Current Underwater and In-Air Acoustic Exposure Criteria ------------------------------------------------------------------------ Criterion Criterion definition Threshold ------------------------------------------------------------------------ Underwater Impulsive (Non-Explosive) Sound ------------------------------------------------------------------------ Level A harassment (injury).... Permanent threshold 180 dB re 1 [mu]Pa- shift (PTS) (Any m (root means level above that square [rms]) which is known to (cetaceans). cause TTS). 190 dB re 1 [mu]Pa- m (rms) (pinnipeds). Level B harassment............. Behavioral 160 dB re 1 [mu]Pa- disruption (for m (rms). impulsive noise). Level B harassment............. Behavioral 120 dB re 1 [mu]Pa- disruption (for m (rms). continuous noise). ------------------------------------------------------------------------ In-Air Sound ------------------------------------------------------------------------ Level A harassment............. NA................. NA. Level B harassment............. Behavioral 90 dB re 20 [mu]Pa disruption. (harbor seals). 100 dB re 20 [mu]Pa (all other pinniped species). NA (cetaceans). ------------------------------------------------------------------------ NA = Not available or not assessed. The City of San Diego and NMFS anticipate takes of Pacific harbor seals, California sea lions, and northern elephant seals by Level B (behavioral) harassment only incidental to the construction project at the Children's Pool. No takes by injury (Level A harassment), serious injury, or mortality are expected. NMFS will consider pinnipeds behaviorally reacting to the construction activities by flushing into the water, moving more than 1 m (3.3 ft), but not into the water; becoming alert and moving, but not moving more than 1 m; and changing direction of current movements by individuals as behavioral criteria for take by Level B harassment. With proposed construction activities scheduled to begin in June 2015, the City of San Diego expects a range of 0 to 190 harbor seals to be present daily during June and a seasonal decline through November to about 0 to 50 harbor seals present daily. If all of the estimated harbor seals present are taken by incidental harassment each day, there could be a maximum of 10,000 takes (i.e., approximately 2,947 adult males and 2,211 juvenile males, 2,842 adult females and 2,000 juvenile females based on age and sex ratios presented in Harkonen et al., 1999) over the entire duration of the activities. An unknown portion of the incidental takes will be from repeated exposures as harbor seals leave and return to the Children's Pool area. A polynomial curve fit to counts by month was used by the City of San Diego to estimate the number of harbor seals expected to be hauled-out by day (see below and Figure 2 of the IHA application). [[Page 28603]] [GRAPHIC] [TIFF OMITTED] TN19MY15.002 Assuming the total seals predicted to haul-out daily at the Children's Pool are exposed to sound levels that are considered Level B harassment during days where sound is predicted to exceed 90 dB at the construction site (65 days), there could be a maximum of approximately 10,000 incidental takes (i.e., exposures) of approximately up to 600 individual Pacific harbor seals over the duration of the activities. The estimated 600 individual Pacific harbor seals would be taken by Level B harassment multiple times during the proposed construction activities. Very few California sea lions and/or northern elephant seals are ever observed at the Children's Pool (i.e., one or two individuals). The City of San Diego requests the authority to incidentally take (i.e., exposures) 10,000 Pacific harbor seals, 100 California sea lions, and 25 northern elephant seals, which will equate to 600, 2, and 1 individuals, respectively, being exposed multiple times. More information on the number of takes authorized, and the approximate percentage of the stock for the three species in the proposed action area can be found in Table 3 (below). Table 3--Summary of the Authorized Incidental Take by Level B Harassment of Pinnipeds for the City of San Diego's Proposed Construction Activities Generating In-Air Noise at the Children's Pool Lifeguard Station in La Jolla, CA -------------------------------------------------------------------------------------------------------------------------------------------------------- Take Approximate authorization Estimated number percentage of Species (number of of individuals Abundance estimated stock Population trend exposures) taken (individuals) -------------------------------------------------------------------------------------------------------------------------------------------------------- Pacific harbor seal..................... 10,000 600 30,968--California stock... 1.93 Increased in California 1981 to 2004. California sea lion..................... 100 2 296,750--U.S. stock........ <0.01 Increasing. Northern elephant seal.................. 25 1 179,000--California <0.01 Increasing 3.8% annually breeding stock. since 1988. -------------------------------------------------------------------------------------------------------------------------------------------------------- [[Page 28604]] Encouraging and Coordinating Research Each construction phase and potential harassment activity will be evaluated as to observed sound levels and any pinniped reaction by type of sound source. Flushing would be documented by sex and age class. These data will provide information for IHA permitting in future projects. Potential additional mitigation (other than what is already required) will be discussed and suggested in the final report. NMFS has encouraged the City of San Diego to review and analyze any available data to determine baseline information as well as evaluate the impacts from the construction activities on the pinnipeds at the Children's Pool. Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses Section 101(a)(5)(D) of the MMPA requires NMFS to determine that the authorization will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for subsistence use. There are not relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for subsistence purposes. Analysis and Preliminary Determinations Negligible Impact Negligible impact is ``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 Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be ``taken'' through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and effects on habitat. In making a negligible impact determination, NMFS evaluated factors such as: (1) The number of anticipated injuries, serious injuries, or mortalities; (2) The number, nature, and intensity, and duration of Level B harassment; and (3) The context in which the takes occur (i.e., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/contemporaneous actions when added to baseline data); (4) The status of the stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population); (5) Impacts on habitat affecting rates of recruitment/survival; and (6) The effectiveness of monitoring and mitigation measures. No injuries (Level A harassment), serious injuries, or mortalities are anticipated to occur as a result of the City of San Diego's construction activities, and none are authorized by NMFS. The proposed activities are not expected to result in the alteration of reproductive behaviors, and the potentially affected species would be subjected to only temporary and minor behavioral impacts. Behavioral disturbance may potentially occur incidental to the visual presence of humans and construction activities; however, pinnipeds at this site have likely adapted or become acclimated to human presence at this site. These ``urbanized'' harbor seals do not exhibit sensitivity at a level similar to that noted in harbor seals in some other regions affected by human disturbance (Allen et al., 1984; Suryan and Harvey, 1999; Henry and Hammil, 2001; Johnson and Acevedo- Gutierrez, 2007; Jansen et al., 2006; Hanan & Associates, 2011). Therefore, there is a high likelihood that many of the harbor seals present during the proposed construction activities would not be flushed off of the beach or rocks, as pinnipeds at this site are conditioned to human presence and loud noises (Hanan, 2004; Hanan & Associates, 2011) (see http://www.youtube.com/watch?v=4IRUYVTULsg). As discussed in detail above, the proposed project scheduling avoids sensitive life stages for Pacific harbor seals. Proposed project activities producing in-air noise will commence in June and end by December 15. The commencement date occurs after the end of the pupping season, affords additional time to accommodate lactation and weaning of season pups, and takes into account periods of lowest haul-out occurrence. The end date falls approximately two weeks prior to January 1, the time after which most births occur, providing protection for pregnant and nursing harbor seals that may give birth before January 1. Table 3 of this document outlines the number of Level B harassment takes that are anticipated as a result of these proposed activities. Due to the nature, degree, and context of Level B (behavioral) harassment anticipated and described (see ``Potential Effects on Marine Mammals'' section above) in this notice, this activity is not expected to impact rates of annual recruitment or survival for the affected species or stock (i.e., California stock of Pacific harbor seals, U.S. stock of California sea lions, and California breeding stock of northern elephant seals), particularly given the proposed mitigation, monitoring, and reporting measures that would be implemented to minimize impacts to marine mammals. The Children's Pool is one of the three known haul-out sites for Pacific harbor seal in San Diego County and the only rookery in San Diego County and the only mainland rookery on the U.S. west coast for this species between the border of Mexico and Point Mugu in Ventura County, CA. For the other marine mammal species that may occur within the action area (i.e., California sea lions and northern elephant seals), there are no known designated or important feeding and/or reproductive areas. Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (i.e., 24 hour cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). However, Pacific harbor seals have been hauling-out at Children's Pool during the year for many years (including during pupping season and while females are pregnant) while being exposed to anthropogenic sound sources such as vehicle traffic, human voices, etc. and other stimuli from human presence. While studies have shown the types of sound sources used during the construction activities have the potential to displace marine mammals from breeding areas for a prolonged period (e.g., Lusseau and Bejder, 2007; Weilgart, 2007), based on the best available information, this does not seem to be the case for the Pacific harbor seals at the Children's Pool. The Pacific harbor seals have repeatedly hauled-out to pup over many years and the NMFS Stock Assessment Reports [[Page 28605]] (NMFS, 2011) for this stock have shown that the population is increasing and is considered stable. Additionally, the proposed construction activities would increase sound levels in the environment in a relatively small area surrounding the lifeguard station (compared to the range of the animals), and some animals may only be exposed to and harassed by sound for less than a day. NMFS's practice has been to apply the 90 dB re 20 [micro]Pa and 100 dB re 20 [micro]Pa received level threshold for in-air sound levels to determine whether take by Level B harassment occurs. Southall et al. (2007) provide a severity scale for ranking observed behavioral responses of both free-ranging marine mammals and laboratory subjects to various types of anthropogenic sound (see Table 4 in Southall et al. [2007]). NMFS has not established a threshold for Level A harassment (injury) for marine mammals exposed to in-air noise, however, Southall et al. (2007) recommends 149 dB re 20 [micro]Pa (peak flat) as the potential threshold for injury from in-air noise for all pinnipeds. No in-air sounds from proposed construction activities would exceed 110 dB at the source and no measured sounds approached that sound level in 2013. Of the 3 marine mammal species under NMFS jurisdiction that may or are known to likely occur in the action area, none are listed as threatened or endangered under the ESA. No incidental take has been requested to be authorized for ESA-listed species as none are expected to be within the action area. To protect these animals (and other marine mammals in the action area), the City of San Diego shall schedule construction activities with highest sound levels during the daily period of lowest haul-out occurrence; limit activities to the hours of daylight; erect a temporary visual and acoustic barrier; use PSOs and prohibit construction activities during harbor seal pupping season. No injury, serious injury, or mortality is expected to occur and due to the nature, degree, and context of the Level B harassment anticipated, the proposed activity is not expected to impact rates of recruitment or survival. Although behavioral modifications, including temporarily vacating the area during the proposed construction activities, may be made by these species to avoid the resultant acoustic disturbance, the availability of alternate areas within these areas for species and the short and sporadic duration of the activities, have led NMFS to determine that the taking by Level B harassment from the specified activity would have a negligible impact on the affected species in the specified geographic region. NMFS believes that the time period of the proposed construction activities, the requirement to implement mitigation measures (e.g., prohibiting construction activities during pupping season, scheduling operations to periods of the lowest haul-out occurrence, visual and acoustic barriers, and the addition of a new measure that helps protect against unexpected abandonment of the site), and the inclusion of the monitoring and reporting measures, will reduce the amount and severity of the potential impacts from the activity to the degree that will have a negligible impact on the species or stocks in the action area. Based on the analysis contained herein of the likely effects of the proposed specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS finds that the total marine mammal take from the City of San Diego's activities would have a negligible impact on the affected marine mammal species or stocks. Small Numbers As mentioned previously, NMFS estimates that 3 species of marine mammals under its jurisdiction could be potentially affected by Level B harassment over the course of the IHA. It is estimated that up to 600 individual Pacific harbor seals, 2 individual California sea lions, and 1 northern elephant seal would be taken (multiple times) by Level B harassment, which would be approximately 1.93, less than 0.01, and less than 0.01% of the respective California, U.S., and California breeding stocks. The population estimates for the marine mammal species that may be taken by Level B harassment were provided in Table 2 of this document. NMFS has determined, provided that the aforementioned proposed mitigation and monitoring measures are implemented, that the impact of the proposed construction activities at the Children's Pool Lifeguard Station in La Jolla, CA, June 2015 to June 2016, may result, at worst, in a temporary modification in behavior and/or low-level physiological effects (Level B harassment) of small numbers of certain species of marine mammals. 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 mitigation and monitoring measures, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks. See Table 2 for the proposed authorized take numbers of marine mammals. Endangered Species Act NMFS (Permits and Conservation Division) has determined that an ESA section 7 consultation for the issuance of an IHA under section 101(a)(5)(D) of the MMPA for this activity is not necessary for any ESA-listed marine mammal species under its jurisdiction, as the proposed action would not affect ESA-listed species. National Environmental Policy Act To meet NMFS's National Environmental Policy Act (NEPA; 42 U.S. C. 4321 et seq.) requirements for the issuance of an IHA to the City of San Diego, NMFS prepared an Environmental Assessment (EA) in 2013 for a similar activity titled Environmental Assessment on the Issuance of an Incidental Harassment Authorization to the City of San Diego to Take Marine Mammals by Harassment Incidental to Demolition and Construction Activities at the Children's Pool Lifeguard Station in La Jolla, California to comply with the Council of Environmental Quality (CEQ) regulations and NOAA Administrative Order (NAO) 216-6. NMFS will evaluate the proposed action to determine whether the 2013 EA supports the City of San Diego's 2015 IHA request. Proposed Authorization As a result of these preliminary determinations, NMFS proposed to issue an IHA to the City of San Diego for conducting construction activities at the Children's Pool Lifeguard Station in La Jolla, CA, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The duration of the IHA would not exceed one year from the date of its issuance. The proposed IHA language is provided below: The City of San Diego, Public Works Department, Engineering and Capital Projects Branch, Architectural Engineering and Parks Division, 525 B Street, Suite 750, MS 908A, San Diego, California 92101, is hereby authorized under section 101(a)(5)(D) of the Marine Mammal Protection Act (16 U.S.C. 1371(a)(5)(D)), to harass small numbers of marine mammals incidental to the construction activities at the Children's Pool Lifeguard Station, June 2015 through June 2016, contingent upon the following conditions: [[Page 28606]] 1. Effective Dates This Authorization is valid from June 28, 2015 through June 27, 2016. 2. Specified Geographic Region This Authorization is valid only for the construction activities at the Children's Pool Lifeguard Station that shall occur in the following specified geographic area: The La Jolla Children's Pool Lifeguard Station at 827 \1/2\ Coast Boulevard, La Jolla, California 92037 (32[deg] 50'50.02'' North, 117[deg]16'42.8'' West), as specified in the City of San Diego's IHA application. 3. Species Authorized and Level of Takes (a) The incidental taking of marine mammals, by Level B harassment only, is limited to the following species in the La Jolla, California area: (i) Pinnipeds--see Table 2 (above) for authorized species and take numbers. (ii) If any marine mammal species are encountered during construction activities that are not listed in Table 3 (above) for authorized taking and are likely to be exposed to sound pressure levels (SPLs) at or above 90 decibels (dB) re 20 [micro]Pa for harbor seals and/or at or above 100 dB re 20 [micro]Pa for all pinniped species except harbor seals (for in-air noise), then the City of San Diego must shut-down operations to avoid take. (b) The taking by injury (Level A harassment), serious injury, or death of any of the species listed in Condition 3(a) above, or the taking of any kind of any other species of marine mammal, is prohibited and may result in the modification, suspension or revocation of this Authorization. 4. The methods authorized for taking by Level B harassment are limited to acoustic-generating equipment sources (e.g., backhoe, dump truck, cement truck, air compressor, electric screw guns, jackhammer, concrete saw, chop saw, and hand tools) without an amendment to this Authorization: 5. Prohibited Take The taking of any marine mammal in a manner prohibited under this Authorization must be reported immediately to the Office of Protected Resources, National Marine Fisheries Service (NMFS), at 301-427-8401. 6. Mitigation and Monitoring Requirements The City of San Diego is required to implement the following mitigation and monitoring requirements when conducting the specified activities in order to achieve the least practicable adverse impact on affected marine mammal species or stocks: Construction Prohibited During Pupping Season (a) The construction activities shall be prohibited during the Pacific harbor seal pupping season at Children's Pool (December 15th to May 15th) and for an additional two weeks to accommodate lactation and weaning of late season pups. Thus, construction shall be prohibited from December 15th to June 1st. Daily Construction Timing (b) The construction activities shall be scheduled Monday through Friday; however, they may continue on weekends to ensure completion of the project in 2015. To the maximum extent practicable, the construction activities shall be conducted from approximately 8:30 a.m. to 3:30 p.m., during the daily period of lowest haul-out occurrence; however, construction activities may be extended from 7 a.m. to 7 p.m. (i.e., daylight hours) to help assure that the project is completed during the 2015 construction window. Harbor seals typically have the highest daily or hourly haul-out period during the afternoon from 3 p.m. to 6 p.m. Visual and Acoustic Barriers (c) A visual and acoustic barrier will be erected and maintained for the duration of the project to shield construction activities from beach view. The temporary barrier shall consist of 1.3 to 1.9 centimeter (\1/2\ to \3/4\ inch) plywood constructed 1.2 to 2.4 meters (4 to 8 feet) high depending on the location. The barriers will be placed at the site with input from NMFS West Coast Regional Office personnel so that they will hide as advantageously as possible the construction activities that may be seen by pinnipeds. Protected Species Observers (d) A NMFS-qualified, trained Protected Species Observer (PSO) shall be used to detect, document, and minimize potential impacts from construction activities. The PSO shall attend the project site 30 minutes prior until 30 minutes after construction activities cease each day throughout the construction window. The PSO shall be approved by NMFS prior to construction activities. The PSO shall search for marine mammals using binoculars and/or the naked eye within the Level B (behavioral) harassment zones, which may vary upon the type of in-air sound being produced by the construction activities. The PSO will observe from a station along the breakwater wall as well as the base of the cliff below the construction area. If inclement weather limits visibility within the area of effect, the PSO will perform visual scans to the extent conditions allow. The PSO will not have to monitor on days or portions of days when there will be little chance of disturbance from construction activities (e.g., nothing visual, sound levels at source less than 90 dB re 20 [micro]Pa, or all work activities inside the building). (e) The PSO shall visually scan the action area for the presence of marine mammals at least 30 minutes prior to the start-up and continuously throughout periods of in-air noise-generating activities. Visual scans shall continue for at least 30 minutes after each noise- generating episode has ceased. (f) The PSO shall use visual digital recordings and photographs to document individuals and behavioral responses to the construction activities. The PSO shall make hourly counts of the number of pinnipeds present and record sound or visual events that result in behavioral responses and changes, whether during construction activities or from public stimuli. During these events, pictures and videos will be taken when possible to document individuals and behavioral responses. (g) A PSO shall record the following information when a marine mammal is sighted: (i) Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), distribution, bearing and distance relative to the sound source(s), group cohesiveness, duration of presence, apparent reaction to the construction activities (e.g., none, avoidance, approach, etc.), direction and speed of travel, duration of presence, and if there are other causes of potential disturbance occurring; (ii) Date, time, location, activity of construction operations, monitoring and mitigation measures implemented (or not implemented), tidal stage, weather conditions, Beaufort sea state, wind speed, visibility, and sun glare; and (iii) The data listed under Condition 6(g)(ii) shall also be recorded at the start and end of each observation watch and during a watch whenever there is a change in one or more variables. (h) A PSO shall also record the time of arrival and departure on site, commencement and cessation of in-air noise construction activities, and presence of humans on the beach. Whenever possible, the PSO should determine as to whether or not the harassment or pinnipeds is attributable [[Page 28607]] to the construction activities and/or the presence of the public on the beach and around the Children's Pool area. A PSO shall record the number of people on the beach and surrounding areas as well as their location relative to the animals. Buffer Zones (i) Buffer zones shall be established (i.e., where sound pressure levels [SPLs] are at or above 90 decibels (dB) re 20 [micro]Pa for harbor seals and/or at or above 100 dB re 20 [micro]Pa for all pinniped species except harbor seals [for in-air noise]) around the construction activities so that in-air sounds associated with the construction activities no longer exceed levels that are potentially harmful to marine mammals. In-Air Noise Monitoring (j) In-air noise monitoring and reporting shall be performed during the construction activities at and near the Children's Pool Lifeguard Station. The PSO shall have access to handheld digital sound level measuring devices. The study will characterize in-air sound levels in the area related to (e.g., construction equipment including backhoe, dump truck, cement truck, air compressor, electric screw guns, jackhammer, concrete saw, chop saw, and hand tools) and in the absence (as a background and baseline [i.e., ambient] for the project) of all construction activities, and confirm or identify harassment isopleths for all types of and construction activities conducted. To better assess in-air sound propagation and source levels, the distance from the sound meter to each sound-producing activity when conducting sound measurements shall be noted. Monitoring shall be conducted three to five days prior to construction activities and shall include hourly systematic counts of pinnipeds using the beach, Seal Rock, and associated reef areas to provide baseline data regarding recent haul- out behavior and patterns as well as background noise levels near the time and construction activities. Monitoring shall continue for 60 days following the end of demolition and construction activities. Following construction, the City of San Diego will have a program where a PSO that will randomly select a day per week to visit the Children's Pool. Potential Abandonment Survey (k) After the first two months of monitoring during construction activities, the City of San Diego shall take the mean number of observed harbor seals at the Children's Pool in a 24-hour period across the two months and compare it to the mean of the lower 95 percent confidence interval in Figure 3 (see above). If the observed mean is lower, the City of San Diego shall shut-down construction activities and work with NMFS and other harbor seal experts (e.g., Mark Lowry, Dr. Sarah Allen, Dr. Pamela Yochem, and/or Dr. Brent Stewart) to develop and implement a revised mitigation plan to further reduce the number of takes and potential impacts. Once a week every week thereafter, the City of San Diego shall take the same mean of observed harbor seals across the previous three tide cycles (a tide cycle is approximately 2 weeks) and compare it to the 95% lower confidence interval in Figure 3 for the same time period. If the observed mean is lower, the City of San Diego shall shut-down and take the action described above. If abandonment of the site is likely, monitoring shall be expanded away from the Children's Pool to determine if animals have been temporarily displaced to haul-out sites in the southern California area (e.g., Torrey Pines, Point Loma, etc.). 7. Reporting Requirements The City of San Diego is required to: (a) Submit a draft report on all activities and monitoring results to the Office of Protected Resources, NMFS, within 90 days of the completion of the construction activities at the Children's Pool Lifeguard Station. This report must contain and summarize the following information: (i) Dates, times, locations, weather, sea conditions (including Beaufort sea state and wind speed), and associated activities during all construction activities and marine mammal sightings; (ii) Species, number, location, distance from the PSO, and behavior of any marine mammals, as well as associated construction activities, observed throughout all monitoring activities. (iii) An estimate of the number (by species) of marine mammals that: (A) are known to have been exposed to the construction activities (based on visual observation) at received levels greater than or equal 90 dB re 20 [mu]Pa for harbor seals and 100 dB re 20 [mu]Pa for all other pinniped species for in-air noise with a discussion of any specific behaviors those individuals exhibited; and (B) may have been exposed (based on reported values and modeling measurements for the construction equipment) to the construction activities in-air noise at received levels greater than or equal 90 dB re 20 [mu]Pa for harbor seals and 100 dB re 20 [mu]Pa for all other pinniped species with a discussion of the nature of the probable consequences of that exposure on the individuals that have been exposed. NMFS will consider pinnipeds flushing into the water; moving more than 1 m (3.3 ft), but not into the water; becoming alert and moving, but not moving more than 1 m; and changing direction of current movement by individuals as behavioral criteria for take by Level B harassment. (iii) A description of the implementation and effectiveness of the: monitoring and mitigation measures of the IHA. (b) Submit a final report to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, within 30 days after receiving comments from NMFS on the draft report. If NMFS decides that the draft report needs no comments, the draft report shall be considered to be the final report. 8. In the unanticipated event that the City of San Diego discovers a live stranded marine mammal (sick and/or injured) at Children's Pool, they shall immediately contact Sea World's stranded animal hotline at 1-800-541-7235. Sea World shall also be notified for dead stranded pinnipeds so that a necropsy can be performed. In all cases, NMFS shall be notified as well, but for immediate responses purposes, Sea World shall be contacted first. Reporting Prohibited Take In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this Authorization, such as an injury (Level A harassment), serious injury or mortality, the City of San Diego shall immediately cease the specified activities and immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to [email protected] and [email protected] and the West Coast Regional Stranding Coordinator (562-980-3230). The report must include the following information: (a) Time, date, and location (latitude/longitude) of the incident; the type of activity involved; description of the circumstances during and leading up to the incident; status of all sound source use in the 24 hours preceding the incident; water depth; environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); description of marine mammal observations in the 24 hours preceding the incident; species identification or description of the animal(s) involved; the fate of the animal(s); and photographs or video footage of the animal (if equipment is available). [[Page 28608]] Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with the City of San Diego to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The City of San Diego may not resume their activities until notified by NMFS via letter or email, or via telephone. Reporting an Injured or Dead Marine Mammal with an Unknown Cause of Death In the event that the City of San Diego 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), the City of San Diego will immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401, and/or by email to [email protected] and [email protected], and the NMFS West Coast Regional Office (1-866-767-6114) and/or the West Coast Regional Stranding Coordinator (562-980-3230). The report must include the same information identified in the Condition 8(a) above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the City of San Diego to determine whether modifications in the activities are appropriate. Reporting an Injured or Dead Marine Mammal Not Related to the Activities In the event that the City of San Diego 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 Condition 2 to 4 of this Authorization (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the City of San Diego shall report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401, and/or by email to [email protected] and [email protected], and the NMFS West Coast Regional Office (1-866-767-6114) and/or the West Coast Regional Stranding Coordinator (562-980-3230), within 24 hours of the discovery. The City of San Diego shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Activities may continue while NMFS reviews the circumstances of the incident. 9. A copy of this Authorization must be in the possession of all contractors and PSOs operating under the authority of this IHA. Request for Public Comments NMFS requests comment on our analysis, the draft authorization, and any other aspect of the preliminary determinations and notice of the proposed IHA for the City of San Diego's construction activities at the La Jolla Children's Pool Lifeguard Station. Please include with your comments any supporting data or literature citations to help inform our final decision on the City of San Diego's request for an MMPA authorization. Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of this IHA application to the Marine Mammal Commission and its Committee of Scientific Advisors. Dated: May 11, 2015. Perry F. Gayaldo, Deputy Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2015-11994 Filed 5-18-15; 8:45 am] BILLING CODE 3510-22-P
![28588 Federal Register / Vol. 80, No. 96 / Tuesday, May 19, 2015 / Notices
populations of the affected species or 2015. A copy of the EA and FONSI is mailbox address for providing email
stocks. available upon request (see ADDRESSES). comments is ITP.Goldstein@noaa.gov.
Please include 0648–XD807 in the
Impact on Availability of Affected Authorization
subject line. NMFS is not responsible
Species for Taking for Subsistence Uses NMFS has issued an IHA to WSDOT for email comments sent to addresses
There are no subsistence uses of for the potential harassment of small other than the one provided here.
marine mammals in the proposed numbers of 11 marine mammal species Comments sent via email, including all
project area; and, thus, no subsistence incidental to the Anacortes Ferry attachments, must not exceed a 25-
uses impacted by this action. Therefore, Terminal tie-up slip dolphins and megabyte size.
NMFS has determined that the total wingwall replacement construction in All comments received are a part of
taking of affected species or stocks Washington State, provided the the public record and will generally be
would not have an unmitigable adverse previously mentioned mitigation, posted to http://www.nmfs.noaa.gov/pr/
impact on the availability of such monitoring, and reporting requirements permits/incidental/ without change. All
species or stocks for taking for are incorporated. Personal Identifying Information (for
subsistence purposes. example, name, address, etc.)
Dated: May 12, 2015.
Endangered Species Act (ESA) Donna S. Wieting, voluntarily submitted by the commenter
Director, Office of Protected Resources, may be publicly accessible. Do not
The humpback whale and the
National Marine Fisheries Service. submit Confidential Business
Southern Resident stock of killer whale
Information or otherwise sensitive or
are the only marine mammal species [FR Doc. 2015–12097 Filed 5–18–15; 8:45 am]
protected information.
currently listed under the ESA that BILLING CODE 3510–22–P
An electronic copy of the IHA
could occur in the vicinity of WSDOT’s
application containing a list of the
proposed construction projects. Under
DEPARTMENT OF COMMERCE references used in this document may
section 7 of the ESA, the Federal
be obtained by writing to the address
Highway Administration (FHWA) and
National Oceanic and Atmospheric specified above, telephoning the contact
WSDOT have consulted with NMFS
Administration listed below (see FOR FURTHER
West Coast Regional Office (WCRO) on
INFORMATION CONTACT), or visiting the
the proposed WSDOT Anacortes Ferry RIN 0648–XD807
Internet at: http://www.nmfs.noaa.gov/
Terminal tie-up slip dolphins and
Takes of Marine Mammals Incidental to pr/permits/incidental/. Documents cited
wingwall replacement project. WCRO
Specified Activities; Construction in this notice, including the IHA
issued a Biological Opinion on July 15,
Activities at the Children’s Pool application, may also be viewed, by
2014, which concludes that the
Lifeguard Station at La Jolla, California appointment, during regular business
proposed Anacortes Ferry Terminal tie-
hours, at the aforementioned address.
up slip dolphins and wingwall AGENCY: National Marine Fisheries
replacement project may affect, but is FOR FURTHER INFORMATION CONTACT:
Service (NMFS), National Oceanic and Howard Goldstein or Jolie Harrison,
not likely to adversely affect the listed Atmospheric Administration (NOAA),
marine mammal species and stocks. Office of Protected Resources, NMFS,
Commerce. 301–427–8401.
The issuance of an IHA to WSDOT
ACTION: Notice; proposed Incidental SUPPLEMENTARY INFORMATION:
constitutes an agency action that
authorizes an activity that may affect Harassment Authorization (IHA);
request for comments. Background
ESA-listed species and, therefore, is
subject to section 7 of the ESA. As the Sections 101(a)(5)(A) and (D) of the
SUMMARY: NMFS has received an
effects of the activities on listed marine MMPA (16 U.S.C. 1361 et seq.), directs
application from the City of San Diego
mammals were analyzed during a the Secretary of Commerce (Secretary)
for an IHA to take small numbers of
formal consultation between the FHWA to allow, upon request, the incidental,
marine mammals, by Level B
and NMFS, and as the underlying action but not intentional, taking of small
harassment, incidental to construction
has not changed from that considered in numbers of marine mammals, by United
activities at the Children’s Pool
the consultation, the discussion of States citizens who engage in a specified
Lifeguard Station in La Jolla, California.
effects that are contained in the activity (other than commercial fishing)
NMFS has reviewed the IHA
Biological Opinion and accompanying within a specified geographical region if
application, including all supporting
memo issued to the FHWA on July 15, certain findings are made and either
documents, and determined that it is
2014, pertains also to this action. regulations are issued or, if the taking is
adequate and complete. Pursuant to the
Therefore, NMFS has determined that limited to harassment, a notice of a
Marine Mammal Protection Act
issuance of an IHA for this activity proposed authorization is provided to
(MMPA), NMFS is requesting comments
would not lead to any effects to listed the public for review.
on its proposal to issue an IHA to the
marine mammal species apart from Authorization for the incidental
City of San Diego to take, by Level B
those that were considered in the takings shall be granted if NMFS finds
harassment only, three species of
consultation on FHWA’s action. that the taking will have a negligible
marine mammals during the specified
impact on the species or stock(s), will
National Environmental Policy Act activities.
not have an unmitigable adverse impact
(NEPA) DATES: Comments and information must on the availability of the species or
NMFS prepared an Environmental be received no later than June 18, 2015. stock(s) for subsistence uses (where
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Assessment (EA) and analyzed the ADDRESSES: Comments on the IHA relevant), and if the permissible
potential impacts to marine mammals application should be addressed to Jolie methods of taking and requirements
that would result from WSDOT’s Harrison, Chief, Permits and pertaining to the mitigation, monitoring,
Anacortes Ferry Terminal tie-up slip Conservation Division, Office of and reporting of such takings are set
dolphins and wingwall replacement Protected Resources, National Marine forth. NMFS has defined ‘‘negligible
project. A Finding of No Significant Fisheries Service, 1315 East-West impact’’ in 50 CFR 216.103 as ‘‘. . . an
Impact (FONSI) was signed in May Highway, Silver Spring, MD 20910. The impact resulting from the specified
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![Federal Register / Vol. 80, No. 96 / Tuesday, May 19, 2015 / Notices 28589
activity that cannot be reasonably IHA for an additional year. The application) with completion of the new
expected to, and is not reasonably likely construction activities are planned to lifeguard station to be completed by
to, adversely affect the species or stock take place during June 2015 to June December 15, 2015. The City of San
through effects on annual rates of 2016 in La Jolla, CA. Regarding the Diego and NMFS are requiring a
recruitment or survival.’’ previous IHA, NMFS published a notice moratorium on all construction
Section 101(a)(5)(D) of the MMPA in the Federal Register (79 FR 8160) on activities during harbor seal pupping
established an expedited process by February 11, 2014, making preliminary and weaning (i.e., December 15th to
which citizens of the United States can determinations and proposing to issue May 30th; see page 5 of the Mitigated
apply for an authorization to an IHA. The notice initiated a 30-day Negative Declaration in the IHA
incidentally take small numbers of public comment period. On June 6, application). Therefore, work on this
marine mammals by harassment. 2014, NMFS published a notice in the project can only be performed between
Section 101(a)(5)(D) of the MMPA Federal Register (79 FR 32699) June 1st and December 14th of any year.
establishes a 45-day time limit for announcing the issuance of an IHA. Proposed construction activities
NMFS’s review of an application Additional information on the would generally occur Monday through
followed by a 30-day public notice and construction activities at the Children’s Friday (no work will occur on holidays)
comment period on any proposed Pool Lifeguard Station is contained in during daylight hours only, as
authorizations for the incidental the IHA application, which is available stipulated in the ‘‘Mitigated Negative
harassment of small numbers of marine upon request (see ADDRESSES). Declaration’’ included in the IHA
mammals. Within 45 days of the close Also, NMFS issued the City of San application and local ordinances. As a
of the public comment period, NMFS Diego an IHA in 2013 (78 FR 40705, July modification to the original IHA, the
must either issue or deny the 8, 2013) for demolition and construction City of San Diego has requested that
authorization. activities at the Children’s Pool planned construction activities be
Except with respect to certain Lifeguard Station that were scheduled to allowed on weekends (i.e., Saturday and
activities not pertinent here, the MMPA be completed in 2013. Because the Sunday to ensure completion of the
defines ‘‘harassment’’ as: any act of construction activities were subject to project during 2015. The exact dates of
pursuit, torment, or annoyance which (i) delays (e.g., nesting migratory birds, the proposed activities depend on
has the potential to injure a marine unexpected drainage pipes, unexpected logistics and scheduling. The IHA is
mammal or marine mammal stock in the demolition and construction planning,
wild [Level A harassment]; or (ii) has valid through June 2016 to allow for
etc.) and could not be completed by construction delays.
the potential to disturb a marine December 15, 2013, the City of San
mammal or marine mammal stock in the Diego requested a renewal of the 2013 Proposed Specific Geographic Region
wild by causing disruption of behavioral IHA for an additional year. Additional
patterns, including, but not limited to, The La Jolla Children’s Pool Lifeguard
information on the construction Station is located at 827 1⁄2 Coast
migration, breathing, nursing, breeding, activities at the Children’s Pool
feeding, or sheltering [Level B Boulevard, La Jolla, CA 92037 (32° 50′
Lifeguard Station is contained in the 50.02″ North, 117° 16′ 42.8″ West). The
harassment]. IHA application, which is available locations and distances (in ft) from the
Summary of Request upon request (see ADDRESSES). construction site to the Children’s Pool
On February 25, 2015, NMFS received Description of the Proposed Specified haul-out area, breakwater ledge/rocks
an application from the City of San Activity haul-out area, reef haul-out area, and
Diego, Engineering and Capital Projects Casa Beach haul-out area can be found
Department, requesting an IHA for the Overview in the City of San Diego’s IHA
taking of marine mammals incidental to The City of San Diego plans to application.
construction activities. NMFS conduct construction activities at the Detailed Description of the Proposed
determined that the IHA application Children’s Pool Lifeguard Station in La Specified Activities
was adequate and complete on April 9, Jolla, CA in order to meet the needs of
2015. the lifeguards at Children’s Pool and the The Children’s Pool was created in
The City of San Diego would demand for lifeguard services. The 1931 by building a breakwater wall
undertake the proposed construction overall project includes the demolition which created a protected pool for
activities between June 2015 and June of the existing lifeguard station and swimming. Although partially filled
2016 at the Children’s Pool Lifeguard construction of a new, three-story, with sand, the Children’s Pool still has
Station in La Jolla, California. In-air lifeguard station on the same site. open water for swimming and a beach
noise generated from equipment used Demolition of the existing lifeguard for sunbathing and beachcombing. The
during the construction activities is station was completed in 2013 to 2014 Children’s Pool and nearby shore areas
likely to result in the take of marine and construction of the new lifeguard (i.e., shoreline, beaches, and reefs of La
mammals. The requested IHA would station is expected to be completed in Jolla) are used by swimmers,
authorize the take, by Level B 2015 to 2016. Because the previously sunbathers, SCUBA divers and
(behavioral) harassment, of small existing lifeguard station was snorkelers, shore/surf fishermen, school
numbers of Pacific harbor seals (Phoca demolished and closed to entry, a classes, tide pool explorers, kayakers,
vitulina richardii), California sea lions temporary lifeguard tower was moved surfers, boogie and skim boarders, seal,
(Zalophus californianus), and northern onto the bluff near the previous sea lion, bird and nature watchers, and
elephant seals (Mirounga angustirostris) lifeguard station. for other activities by the general public.
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incidental to construction activities of Over the last three years (2010 through
the Children’s Pool Lifeguard Station at Proposed Dates and Duration 2012), an average of 1,556,184 people
La Jolla, CA. Because the proposed The City of San Diego is planning to have visited the Children’s Pool
construction activities were subject to begin/resume the project at the annually, and lifeguards have taken an
delays and cannot be completed by June Children’s Pool in La Jolla, CA on June average of 8,147 preventive actions and
27, 2015, the City of San Diego has 1, 2015, (see page 30 to 31 of the 86 water rescues annually (CASA, 2010;
requested a renewal of the 2014 to 2015 Negative Declaration in the IHA 2011; 2012).
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![28590 Federal Register / Vol. 80, No. 96 / Tuesday, May 19, 2015 / Notices
The previous lifeguard facility at community. Enhanced paving, seating This phase will be completed in 2015
Children’s Pool, built in 1967, was old, and viewing space, drinking fountains, and has a maximum source level of 100
deteriorating from saltwater intrusion, adapted landscaping, and water efficient dB.
and no longer served the needs of the irrigation will also be included. (6.) Building exterior:
lifeguard staff or the beach-going public. The City of San Diego has divided the Doors and windows, siding paint,
The structure was condemned on demolition and construction activities light fixtures, and plumbing fixtures.
February 22, 2008 due to its deteriorated are divided into phases: Equipment—truck, hand/power tools,
condition and lack of structural (1.) Mobilization and temporary and chop saw.
integrity. Because the existing building facilities; Timeframe—Approximately 4 weeks.
was no longer viable, a temporary (2.) Demolition and site clearing; This phase will be completed in 2015
lifeguard tower was moved in. However, (3.) Site preparation and utilities; and has a maximum source level of 100
a new lifeguard station is required to (4.) Building foundation; dB.
meet the needs of the lifeguards and the (5.) Building shell; (7.) Building interiors:
demand for lifeguard services. (6.) Building exterior; Walls, sewage lift station, rough and
(7.) Building interior; finish mechanical electrical plumbing
The overall project includes the
(8.) Site improvements; and structural (MEPS), wall board, door
demolition of the existing lifeguard
(9.) Final inspection and frames, doors and paint.
station and construction of a new, three-
Equipment—truck, hand/power tools,
story, lifeguard station on the same site. demobilization.
and chop saw.
Demolition and removal of the existing Demolition and construction of the
Timeframe—Approximately 37 days.
lifeguard station was completed in 2013 new lifeguard station was initially This phase will be completed in 2015
to 2014 and construction of the new estimated to take approximately 7 and has a maximum source level of 100
lifeguard station is expected to be months (148 actual demolition and dB.
completed in 2015 to 2016. The construction days) and be completed by (8.) Site improvements:
building contractor utilized excavators, December 15, 2013; however, Modify storm drain, concrete seat
backhoes, concrete saws, and demolition and construction did not walls, curbs, and planters, fine grade,
jackhammers for demolishing the start until later than previously planned irrigation, hardscape, landscape, hand
previous structure and has hauled the in June 2013 and June 2014 due to the rails, plaques, and benches.
waste materials to an offsite landfill presence of nesting migratory birds (i.e., Equipment—backhoe, truck, hand/
where it was separated into recycled Western seagulls [Larus occidentalis] power tools, concrete pump/truck, and
content and waste. During the second and eggs/chicks). There were additional fork lift.
year of construction (2014 to 2015) and unexpected delays in the demolition Timeframe—Approximately 37 days.
in the same footprint as the old due to unforeseen underground This phase will be completed in 2015
lifeguard station, the new lifeguard structures at the site making it and has a maximum source level of 110
station is being constructed within and impossible to finish the project by dB.
adjacent to the previous facility. Rough December 15, 2013 or 2014. The City of (9.) Final inspection and
plumbing and electrical have been laid; San Diego completed phases 1 to 4 demobilization:
the foundation has been poured and during 2013 and 2014. During the 2013 System testing, remove construction
some of the steel structure has been to 2014 construction window, the equipment, inspection, and corrections.
erected. The new lifeguard facility is in temporary on-site tower was removed Equipment—truck, and hand/power
an optimal location to provide lifeguard and two temporary towers were tools.
service to the community. The new, installed nearby (one about 500 m Timeframe—Approximately 41 days.
three-story, building will contain a [1,640.4 ft] south of the construction site This phase will be completed in 2015
lower level with beach access level and another about 1,000 m [3,280.8 ft] and has a maximum source level of 100
public restrooms and showers, lifeguard east of the construction site to serve dB.
lockers, and sewage pump room; a citizens utilizing the beaches and ocean The exact dates of the planned
second level with two work stations, waters nearby. Construction of phases 5 activities depend on logistics and
ready/observation room, kitchenette, to 9 would commence in June 2015, scheduling.
restroom, and first aid station; and a thereby necessitating a renewal of the Sound levels during all phases of the
third ‘‘observation’’ level (with a 270° previous IHA. project would not exceed 110 dB re 20
view of the beach and nearby reef areas) The notice of the final IHA for the mPa at five feet from the sound sources.
with a single occupancy observation City of San Diego’s demolition and The 110 dB estimate is based on
space, radio storage closet, and exterior construction activities that was equipment manufacturers’ estimates
catwalk. Interior stairs will link the published in the Federal Register on obtained by the construction contractor.
floors. The existing below grade July 8, 2013 (78 FR 40705) provides a The City of San Diego utilized
retaining walls will remain in place and detailed summary on phases 1 to 4 (i.e., published or manufacturers’
new retaining walls will be constructed mobilization and temporary facilities, measurement data based on the
for a ramp from street level to the lower demolition and site clearing, site proposed equipment (i.e., a backhoe,
level for emergency vehicle beach preparation and utilities, and building dump truck, cement pump, air
access and pedestrian access to the foundation). Phases 5 to 9 include compressor, electric screw guns,
lower level restrooms and showers. A (phases overlap in time): jackhammers, concrete saw, chop saw,
5.6 m (18. 5 ft) wall will be located (5.) Building shell: and hand tools) to be utilized on the
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along the north end of the lower level. Pre-cast concrete panel walls, panel project site. Operation of the equipment
The walls will be designed for a walls, rough carpentry and roof framing, is the primary activity within the range
minimum design life of 50 years and wall board, cable railing, metal flashing, of construction activities that is likely to
will not be undermined from ongoing and roofing. affect marine mammals by potentially
coastal erosion. The walls will not be Equipment—crane, truck, fork lift, exposing them to in-air (i.e., airborne or
readily viewed from Coast Boulevard, and hand/power tools. sub-aerial) noise. During the working
the public sidewalks or the surrounding Timeframe—Approximately 35 days. day, the City of San Diego estimates
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there would be sound source levels and mean distance from sound sources species of marine mammals that occur
above 90 dB re 20 mPa, including 65 by the type of equipment and and are likely to be found within the
days of 100 to 110 dB re 20 mPa at the monitoring location. The City of San immediate vicinity of the activity area.
construction site. Diego intends to continue to measure in- Therefore, these three species are likely
On average, pinnipeds will be about air background noise levels in the days to be exposed to effects of the proposed
30.5 meters (m) (100 feet [ft]) or more immediately prior to, during, and after specified activities. A variety of other
from the construction site with a the construction activities. marine mammals have on occasion been
Additional details regarding the reported in the coastal waters off
potential minimum of about 15.2 m (50
proposed construction activities of the southern California. These include gray
ft). During 2013 and 2014, measured Children’s Pool Lifeguard Station can be
sound levels from the demolition whales, killer whales, bottlenose
found in the City of San Diego’s IHA dolphins, Steller sea lions, northern fur
equipment reaching the pinnipeds did application. The IHA application can
not exceed approximately 90 dB re 20 seals, and Guadalupe fur seals.
also be found online at: http://
mPa at the haul-out area closest to the However, none of these species have
www.nmfs.noaa.gov/pr/permits/
demolition and construction and a peak been reported to occur in the immediate
incidental/construction.htm.
of about 83 dB re 20 mPa at the mean proposed action area of the Children’s
hauling-out distance (30.5 m). The City Description of Marine Mammals in the Pool beach. Therefore, NMFS does not
of San Diego used the formula and Specified Geographic Area of the expect, and is not authorizing,
online calculator on the Web site: Proposed Specified Activity incidental take of other marine mammal
http://sengpielaudio.com/calculator- Three species of pinnipeds are known species from the proposed specified
distance.htm and measured distances to or could occur in the Children’s Pool activities. Table 1 below identifies the
from the sound source to determine the proposed action area and off the Pacific cetacean and pinnipeds species, their
area of potential impacts from in-air coastline (see Table 1 below). Pacific habitat, and conservation status in the
sound. Table 1 of the City of San Diego’s harbor seals, California sea lions, and nearshore area of the general region of
monitoring report provides mean sound northern elephant seals are the three the proposed project area.
TABLE 1—THE HABITAT, ABUNDANCE, AND CONSERVATION STATUS OF MARINE MAMMALS INHABITING THE GENERAL
REGION OF THE ACTION AREA IN THE PACIFIC OCEAN OFF THE SOUTHERN COAST OF CALIFORNIA
Best
population
Species Habitat Occurrence Range ESA 2 MMPA 3
estimate
(minimum) 1
Mysticetes
Gray whale (Eschrichtius Coastal and Transient dur- North Pacific Ocean, 20,990 DL—Eastern NC—Eastern
robustus). shelf. ing season Gulf of California to (20,125). Pacific stock. North Pacific
migrations. Arctic—Eastern North EN—Western stock
Pacific stock. Pacific stock. D—Western North
Pacific stock.
Odontocetes
Killer whale (Orcinus Widely distrib- Varies on inter- Cosmopolitan ................. 354 (354)— NL ................... NC
orca). uted. annual basis. West Coast EN—Southern D—Southern Resi-
Transient resident pop- dent and AT1
stock. ulation. Transient popu-
lations.
Bottlenose dolphin Offshore, Limited, small Tropical and temperate 323 (290)— NL ................... NC.
(Tursiops truncatus). inshore, population waters between 45° California
coastal, estu- within 1 km North and South. Coastal
aries. of shore. stock.
Long-beaked common Inshore ............ Common, more Nearshore and tropical 107,016 NL ................... NC.
dolphin (Delphinus inshore dis- waters. (76,224)—
capensis). tribution, California
year-round stock.
presence.
Pinnipeds
Pacific harbor seal Coastal ........... Common ......... Coastal temperate to 30,968 NL ................... NC.
(Phoca vitulina polar regions in North- (27,348)—
richardii). ern Hemisphere. California
stock.
Northern elephant seal Coastal, pe- Common ......... Eastern and Central 179,000 NL ................... NC.
tkelley on DSK3SPTVN1PROD with NOTICES
(Mirounga lagic when North Pacific—Alaska (81,368)—
angustirostris). not migrating. to Mexico. California
breeding
stock.
California sea lion Coastal, shelf .. Common ......... Eastern North Pacific 296,750 NL ................... NC.
(Zalophus californianus). Ocean—Alaska to (153,337)—
Mexico. U.S. stock.
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TABLE 1—THE HABITAT, ABUNDANCE, AND CONSERVATION STATUS OF MARINE MAMMALS INHABITING THE GENERAL
REGION OF THE ACTION AREA IN THE PACIFIC OCEAN OFF THE SOUTHERN COAST OF CALIFORNIA—Continued
Best
population
Species Habitat Occurrence Range ESA 2 MMPA 3
estimate
(minimum) 1
Steller sea lion Coastal, shelf .. Rare ................ North Pacific Ocean— 72,223 DL—Eastern D.
(Eumetopias jubatus). Central California to (52,847)— U.S. stock.
Korea. Eastern EN—Western
U.S. stock. U.S. stock.
Northern fur seal Pelagic, off- Rare ................ North Pacific Ocean— 12,844 NL ................... NC—California
(Callorhinus ursinus). shore. Mexico to Japan. (6,722)— stock.
California
stock.
Guadalupe fur seal Coastal, shelf .. Rare ................ California to Baja Cali- 7,408 T ..................... D.
(Arctocephalus fornia, Mexico. (3,028)—
townsendi). Mexico to
California.
NA = Not available or not assessed.
1 NMFS Marine Mammal Stock Assessment Reports
2 U.S. Endangered Species Act: EN = Endangered, T = Threatened, DL = Delisted, and NL = Not listed.
3 U.S. Marine Mammal Protection Act: D = Depleted, S = Strategic, and NC = Not classified.
The rocks and beaches at or near the make extensive pelagic migrations, but for foraging (Perrin et al., 2008). Of the
Children’s Pool in La Jolla, CA, are do travel 300 to 500 kilometers (km) known haul-out sites, 14 locations are
almost exclusively Pacific harbor seal (162 to 270 nautical miles [nmi]) on rookeries (2 locations have multiple
hauling-out sites. On infrequent occasion to find food or suitable sites, for a total of 17 sites) on or near
occasions, one or two California sea breeding areas (Herder, 1986; Harvey the mainland of California. The
lions or a single juvenile northern and Goley, 2011). Previous assessments population of harbor seals has grown off
elephant seal have been observed on the of the status of harbor seals have the U.S. west coast and has led to new
sand or rocks at or near the Children’s recognized three stocks along the west haul-out sites being used in California
Pool (i.e., breakwater ledge/rocks haul- coast of the continental U.S.: (1) (Hanan, 1996). Harbor seals are one of
out area, reef haul-out area, and Casa California, (2) Oregon and Washington the most common and frequently
Beach haul-out area). These sites are not outer coast waters, and (3) inland waters observed marine mammals along the
usual haul-out locations for California of Washington. An unknown number of coastal environment.
sea lions and/or northern elephant seals. harbor seals also occur along the west
The City of San Diego commissioned Harbor seals have been observed
coast of Baja California, at least as far hauling-out and documented giving
two studies of harbor seal abundance south as Isla Asuncion, which is about
trends at the Children’s Pool. Both birth at the Children’s Pool since the
100 miles south of Punta Eugenia. 1990’s (Yochem and Stewart, 1998;
studies reported that appearances of Animals along Baja California are not
California sea lions and northern Hanan & Associates, 2004). Pacific
considered to be a part of the California harbor seals haul-out year-round on
elephant seals are infrequent, but not stock because it is not known if there is
rare at Children’s Pool (Yochem and beaches and rocks (i.e., breakwater
any demographically significant ledge/rocks haul-out area, reef haul-out
Stewart, 1998; Hanan, 2004; Hanan & movement of harbor seals between
Associates, 2011). During 2013, the City area, and Casa Beach haul-out area)
California and Mexico and there is no below the lifeguard tower at Children’s
of San Diego observed one juvenile and international agreement for joint
three adult California sea lions and two Pool. According to Yochem (2005), the
management of harbor seals. Harbor seal Children’s Pool beach site is used by
juvenile northern elephant seals at the presence at haul-out sites is seasonal
Children’s Pool. During 2014, the City of harbor seals at all hours of the day and
with peaks in abundance during their at all tides with the exception of
San Diego observed 22 California sea pupping and molting periods. Pupping
lions (during 19 days) and 30 juvenile occasional high tide/high swell events
and molting periods are first observed to in which the entire beach is awash. It is
elephant seals (during 29 days) at the the south and progress northward up
Children’s Pool. Adult sea lions were one of the three known haul-out sites for
the coast with time (e.g., January to May this species in San Diego County. These
also observed hauling out on rocks and near San Diego, April to June in Oregon
cliffs near the Children’s Pool. animals have been observed in this area
and Washington) (Jeffries, 1984; Jeffries, moving to/from the Children’s Pool,
Pacific Harbor Seal 1985; Huber et al., 2001; Hanan, 2004; exchanging with the rocky reef directly
Harbor seals are widely distributed in Hanan & Associates, 2011). west of and adjacent to the breakwater
the North Atlantic and North Pacific. In California, approximately 400 to and with Seal Rock, which is about 150
Two subspecies exist in the Pacific 600 harbor seal haul-out sites are m (492 ft) west of the Children’s Pool.
Ocean: P. v. stejnegeri in the western distributed along the mainland coast Harbor seals have also been reported on
tkelley on DSK3SPTVN1PROD with NOTICES
North Pacific near Japan, and P. v. and on offshore islands, including the sandy beach just southwest of the
richardii in the eastern North Pacific. intertidal sandbars and ledges, rocky Children’s Pool. At low tide, additional
The subspecies in the eastern North shores and islets, and beaches (Harvey space for hauling-out is available on the
Pacific Ocean inhabits near-shore et al., 1995; Hanan, 1996; Lowry et al., rocky reef areas outside the retaining
coastal and estuarine areas from Baja 2008). Preferred haul-out sites are those wall and on beaches immediately
California, Mexico, to the Pribilof that are protected from the wind and southward. Haul-out times vary by time
Islands in Alaska. These seals do not waves, and allow access to deep water of year, from less than an hour to many
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hours. There have been no foraging average number of harbor seals on the would expect similar numbers in 2015
studies at this site, but harbor seals have beach varied from 83 to 120 animals to 2016.
been observed in nearshore waters and before people entered the beach or when A complete count of all harbor seals
kelp beds nearby, including La Jolla people were behind the rope. During in California is impossible because some
Cove. this same period, when people were on are always away from the haul-out sites.
The Children’s Pool area is the only the beach and/or across the rope, the A complete pup count (as is done for
rookery in San Diego County and the average number of harbor seals varied other pinnipeds in California) is also not
only mainland rookery on the U.S. west from 7 to 27. The City of San Diego possible because harbor seals are
coast between the border of Mexico and observed 12 counts totaling more than precocial, with pups entering the water
Point Mugu in Ventura County, CA 200 and a maximum of 238 animals almost immediately after birth.
(321.9 km [200 miles]). The number of during the 2014 to 2015 construction Population size is estimated by counting
harbor seals in this area has increased window. The weather (i.e., wind and/or the number of seals ashore during the
since 1979, and seals are documented to rain) and the proximity of humans to peak haul-out period (May to July) and
give birth on these beaches during the beach likely affect the presence of by multiplying this count by a
December through May (Hanan, 2004; harbor seals on the beach. correction factor equal to the inverse of
Hanan & Associates, 2011). The official Radio-tagging and photographic the estimated fraction of seals on land.
start to pupping season is December 15. studies have revealed that only a Based on the most recent harbor seal
Females in an advanced stage of portion of seals utilizing a hauling-out counts (2009) and including a revised
pregnancy begin to show up on the site are present at any specific moment correction factor, the estimated
Children’s Pool beach by late October to or day (Hanan, 1996, 2005; Gilbert et al., population of harbor seals in California
early November. Several studies have 2005; Harvey and Goley, 2011; and is 30,196 individuals (NMFS, 2011),
identified harbor seal behavior and Linder, 2011). These radio-tagging with an estimated minimum population
estimated harbor seal numbers studies indicate that harbor seals in of 26,667 for the California stock of
including patterns of daily and seasonal Santa Barbara County haul-out about 70 harbor seals. Counts of harbor seals in
area use (Yochem and Stewart, 1998; to 90% of the days annually (Hanan, California increased from 1981 to 2004.
Hanan & Associates, 2011; Linder, 1996). The City of San Diego expects The harbor seal is not listed under the
2011). Males, females, and pups (in harbor seals to behave similarly at the ESA and the California stock is not
season) of all ages and stages of Children’s Pool. Tagged and branded considered depleted or strategic under
development are observed at the harbor seals from other haul-out sites the MMPA (Carretta et al., 2010).
Children’s Pool and adjacent areas. have been observed by Dr. Hanan at the
In southern California, a considerable California Sea Lion
Children’s Pool. For example, harbor
amount of information is known about seals with red-stained heads and coats, The California sea lion is a full
the movements and ecology of harbor which are typical of some harbor seals species, separate from the Galapagos sea
seals, but population structure in the in San Francisco Bay have been lion (Zalophus wollebaeki) and the
region is not as well known (Stewart observed at Children’s Pool, indicating extinct Japanese sea lion (Zalophus
and Yochem, 1994, 2000; Keper et al., that seals tagged at other locations and japonicus) (Brunner, 2003; Wolf et al.,
2005; Hanan & Associates, 2011). Linder haul-out sites visit the site. A few seals 2007; Schramm et al., 2009). This
(2011) suggests that this population have been tagged at the Children’s Pool species of sea lion is found from
moves along the California coast and the and there are no reports of these tagged southern Mexico to southwestern
beach at Children’s Pool is part of a animals at other sites (probably because Canada. The breeding areas of the
‘‘regional network of interconnected’’ of very low re-sighting efforts and a California sea lion are on islands located
haul-out and pupping sites. Harbor seals small sample size [10 individuals radio- in southern California, western Baja
often haul-out in protected bays, inlets, tagged]), which may indicate a degree of California, and the Gulf of California. A
and beaches (Reeves et al., 1992). At and site-fidelity (Yochem and Stewart, genetic analysis of California sea lions
near the Children’s Pool, harbor seals 1998). These studies further indicate identified five genetically distinct
haul-out on the sand, rocks, and that seals are constantly moving along geographic populations: (1) Pacific
breakwater base in numbers of 0 to 15 the coast including to/from the offshore Temperate, (2) Pacific Subtropical, (3)
harbor seals to a maximum of about 150 islands and that there may be as many Southern Gulf of California, (4) Central
to 250 harbor seals depending on the as 600 individual harbor seals using Gulf of California, and (5) Northern Gulf
time of day, season, and weather Children’s Pool during a year, but of California (Schramm et al., 2009). In
conditions (Hanan, 2004, Hanan & certainly not all at one time. that study, the Pacific Temperate
Associates, 2011; Linder, 2011). Because The City of San Diego has fitted a population included rookeries within
space is limited behind the breakwater polynomial curve to the number of U.S. waters and the Coronados Islands
at the Children’s Pool, Linder (2011) expected harbor seals hauling-out at the just south of U.S./Mexico border.
predicted that it is unlikely that Children’s Pool by month (see Figure 1 Animals from the Pacific Temperate
numbers will exceed 250 harbor seals. of the IHA application and Figure 2 population range north into Canadian
Based on monitoring from a camera, below) based on counts at the Children’s waters, and movement of animals
Western Alliance for Nature (WAN) Pool by Hanan (2004), Hanan & between U.S. waters and Baja California
reported that during the month of May Associates (2011), Yochem and Stewart waters has been documented, though
2013 up to 302 harbor seals were (1998), and the Children’s Pool docents the distance between the major U.S. and
documented resting on the Children’s (Hanan, 2004). A three percent annual Baja California rookeries is at least 740.8
Pool beach at any given time, with growth rate of the population was km (400 nmi). Males from western Baja
tkelley on DSK3SPTVN1PROD with NOTICES
additional harbor seals on the rocks and applied to Yochem and Stewart (1998) California rookeries may spend most of
in the water (Wan, personal counts to normalize them to Hanan & the year in the United States.
communication). Almost every day, Associates and docent counts in 2003 to The entire California sea lion
except for weekends, over 250 2004. Based on monitoring during 2013 population cannot be counted because
individual harbor seals were present on to 2014, Dr. Hanan estimates that all age and sex classes are never ashore
the beach. During the months of similar numbers of harbor seals hauling- at the same time. In lieu of counting all
September 2012 to January 2013, the out at Children’s Pool during 2011 and sea lions, pups are counted during the
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breeding season (because this is the only counting the number of pups produced later in this document will include a
age class that is ashore in its entirety), and multiplying by the inverse of the quantitative analysis of the number of
and the numbers of births is estimated expected ratio of pups to total animals individuals that are expected to be taken
from the pup count. The size of the (McCann, 1985). Based on counts of by this activity. The ‘‘Negligible Impact
population is then estimated from the elephant seals at U.S. rookeries in 2010, Analysis’’ section will include the
number of births and the proportion of Lowry et al. (2014) reported that 40,684 analysis of how this specific activity
pups in the population. Censuses are pups were born. Lowry et al. (2014) will impact marine mammals and will
conducted in July after all pups have applied a multiplier of 4.4 to extrapolate consider the content of this section, the
been born. There are no rookeries at or from total pup counts to a population ‘‘Estimated Take by Incidental
near the Children’s Pool, although in the estimate of approximately 179,000 Harassment’’ section, the ‘‘Proposed
past two years births have been reported elephant seals. This multiplier is Mitigation’’ section, and the
at La Jolla Cove (about 0.75 km [0.47 derived from life tables based on ‘‘Anticipated Effects on Marine Mammal
miles] east of Children’s Pool). published elephant seal fecundity and Habitat’’ section to draw conclusions
Population estimates for the U.S. stock survival rates, and reflects a population regarding the likely impacts of this
of California sea lions range from a with approximately 23% pups (Cooper activity on the reproductive success or
minimum of 153,337 to an average and Stewart, 1983; Le Boeuf and Reiter, survivorship of individuals and from
estimate of 296,750 animals. They are 1988; Hindell 1991; Huber et al., 1991; that on the affected marine mammal
considered to be at carrying capacity of Reiter and Le Boeuf, 1991; Clinton and populations or stocks.
the environment. The California sea lion Le Boeuf, 1993; Le Boeuf et al., 1994; When considering the influence of
is not listed under the ESA and the U.S. Pistorius and Bester, 2002; McMahon et various kinds of sound on the marine
stock is not considered depleted or al., 2003; Pistorius et al., 2004; Condit environment, it is necessary to
strategic under the MMPA. et al., 2014). The minimum population understand that different kinds of
size for northern elephant seals in 2010 marine life are sensitive to different
Northern Elephant Seal frequencies of sound. Based on available
can be estimated very conservatively as
Northern elephant seals breed and 81,368, which is equal to twice the behavioral data, audiograms have been
give birth in California (U.S.) and Baja observed pup count (to account for the derived using auditory evoked
California (Mexico), primarily on pups and their mothers). The potentials, anatomical modeling, and
offshore islands (Stewart et al., 1994) population is reported to have grown at other data, Southall et al. (2007)
from December to March (Stewart and 3.8% annually since 1988 (Lowry et al., designate ‘‘functional hearing groups’’
Huber, 1993). Spatial segregation in 2014). Northern elephant seals are not for marine mammals and estimate the
foraging areas between males and listed under the ESA and are not lower and upper frequencies of
females is evident from satellite tag data considered as depleted or a strategic functional hearing of the groups. The
(Le Beouf et al., 2000). Males migrate to stock under the MMPA. functional groups and the associated
the Gulf of Alaska and western Aleutian Further information on the biology frequencies are indicated below (though
Islands along the continental shelf to and local distribution of these marine animals are less sensitive to sounds at
feed on benthic prey, while females mammal species and others in the the outer edge of their functional range
migrate to pelagic areas in the Gulf of region can be found in the City of San and most sensitive to sounds of
Alaska and the central North Pacific to Diego’s IHA application, which is frequencies within a smaller range
feed on pelagic prey (Le Beouf et al., available upon request (see ADDRESSES), somewhere in the middle of their
2000). Adults return to land between and the NMFS Marine Mammal Stock functional hearing range):
March and August to molt, with males Assessment Reports, which are available • Low-frequency cetaceans (13
returning later than females. Adults online at: http://www.nmfs.noaa.gov/pr/ species of mysticetes): functional
return to their feeding areas again sars/. hearing is estimated to occur between
between their spring/summer molting approximately 7 Hz and 30 kHz;
Potential Effects of the Proposed
and their winter breeding seasons. • Mid-frequency cetaceans (32
Populations of northern elephant Specified Activity on Marine Mammals
species of dolphins, six species of larger
seals in the U.S. and Mexico have This section includes a summary and toothed whales, and 19 species of
recovered after being nearly hunted to discussion of the ways that the types of beaked and bottlenose whales):
extinction (Stewart et al., 1994). stressors associated with the proposed functional hearing is estimated to occur
Northern elephant seals underwent a specified activity (e.g., construction between approximately 150 Hz and 160
severe population bottleneck and loss of equipment and activities) have been kHz;
genetic diversity when the population observed to impact marine mammals. • High-frequency cetaceans (eight
was reduced to an estimated 10 to 30 This discussion may also include species of true porpoises, six species of
individuals (Hoelzel et al., 2002). reactions that we consider to rise to the river dolphins, Kogia spp., the
However, movement and genetic level of a take and those that we do not franciscana (Pontoporia blainvillei), and
exchange continues between rookeries consider to rise to the level of take (for four species of cephalorhynchids):
when they start breeding (Huber et al., example, with acoustics), we may functional hearing is estimated to occur
1991). The California breeding include a discussion of studies that between approximately 200 Hz and 180
population is now demographically showed animals not reacting at all to kHz; and
isolated from the Baja California sound or exhibiting barely measureable • Phocid pinnipeds in water:
population. The California breeding avoidance). This section is intended as functional hearing is estimated to occur
population is considered in NMFS’s a background of potential effects and between approximately 75 Hz and 100
tkelley on DSK3SPTVN1PROD with NOTICES
stock assessment report to be a separate does not consider either the specific kHz;
stock. manner in which this activity will be • Otariid pinnipeds in water:
A complete population count of carried out or the mitigation that will be functional hearing is estimated to occur
elephant seals is not possible because implemented, or how either of those between approximately 100 Hz and 40
all age classes are not ashore will shape the anticipated impacts from kHz.
simultaneously. Elephant seal this specific activity. The ‘‘Estimated As mentioned previously in this
population size is typically estimated by Take by Incidental Harassment’’ section document, 3 marine mammal species (0
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barriers also appear to hide and reduce Prohibition of Construction During construction activities no longer exceed
visual cues that may stimulate Pupping Season levels that are potentially harmful to
behavioral reactions from the pinnipeds Construction shall be prohibited marine mammals.
on the beach below. As the site is a during the Pacific harbor seal pupping Timing Constraints for In-Air Noise
beach with construction along the cliff season (December 15th to May 15th) and
and on flat areas above the cliff, a for an additional two weeks thereafter to To minimize in-air noise impacts on
complete barrier cannot be constructed accommodate lactation and weaning of marine mammals, construction
to hide all construction activities for the late season pups. Thus, construction activities shall be limited to the period
project. Once the walls of the lifeguard shall be prohibited from December 15th when the species of concern would be
station’s building are in place, much of to June 1st. least likely to be in the project area. The
the construction activities will take construction window for construction
place above the Children’s Pool beach Daily Construction Timing activities shall be from June 1 to
(i.e., out of sight) as well as inside the Construction activities shall be December 15, 2015. The IHA may
building (i.e., a visual and partial sound scheduled, to the maximum extent extend to June 1 through June 27, 2016
barrier). There would be no activities in practicable, during the daily period of to finish the construction activities if
the ocean or closer to the water’s edge lowest haul-out occurrence, from needed. Avoiding periods when the
and since harbor seals mate underwater approximately 8:30 a.m. to 3:30 p.m. highest number of marine mammal
in the ocean, there will be no impacts However, construction activities may be individuals are in the action area is
on mating activities. California sea lions extended from 7 a.m. to 7 p.m. to help another mitigation measure to protect
and northern elephant seals are such assure that the project can be completed marine mammals from the proposed
infrequent users of this area and their during the 2015 construction window. construction activities.
rookeries are so far away (at least 104.6 Harbor seals typically have the highest
km [65 miles] at offshore islands) that daily or hourly haul-out period during Potential Abandonment Survey
there will be no adverse impact on these the afternoon from 3 p.m. to 6 p.m. After the first two months of
species. Construction of Visual and Acoustic monitoring during construction
As part of the public comment Barriers activities, the City of San Diego will take
process for the issuance of the previous the mean number of observed harbor
2013 IHA, NMFS modified several of A visual and acoustic barrier would
be erected and maintained for the seals at the Children’s Pool in a 24-hour
the monitoring and mitigation measures period across that two months and
included in the proposed IHA (78 FR duration of the project to shield
construction activities from beach view. compare it to the mean of the lower 95
25958, May 3, 2013) for practicability percent confidence interval in Figure 1
The temporary barrier shall consist of 1⁄2
reasons, and also included several (see below). If the observed mean is
to 3⁄4 inch (1.3 to 1.9 centimeters [cm])
additional measures in the final IHA (78 lower, the City of San Diego would shut-
plywood constructed 1.8 to 2.4 m (6 to
FR 40705, July 8, 2013). These included down construction activities and work
8 ft) high depending on the location.
changing the pupping season from with NMFS and other harbor seal
The City of San Diego does not believe
December 15th to May 15th and experts (e.g., Mark Lowry, Dr. Sarah
that a complete barrier can be
prohibiting construction activities Allen, Dr. Pamela Yochem, and/or Dr.
constructed to hide all of the proposed
during this time; extending construction Brent Stewart) to develop and
construction activities. Once the walls
activities from 7:00 a.m. to 7:00 p.m. to implement a revised mitigation plan to
of the lifeguard station building are in
help assure that more work would be further reduce the number of takes and
place, much of the proposed
completed during the 2013 construction potential impacts. Once a week every
construction activities would take place
window; continuing monitoring for 60 week thereafter, the City of San Diego
on the bluff above the beach (thus out
days following the end of construction will take the same mean of observed
of sight) and inside the building, which
activities; and triggering a shut-down of harbor seals across the previous three
would provide a visual and partial
construction activities in the tide cycles (a tide cycle is
sound barrier.
unexpected event of abandonment of approximately 2 weeks) and compare it
the Children’s Pool site. The mitigation Protected Species Observers to the 95% lower confidence interval in
measure on scheduling the heaviest Trained PSOs would be used to Figure 1 for the same time period. If the
construction activities (with the highest detect, document, and minimize observed mean is lower, the City of San
sound levels) during the annual period impacts (i.e., possible shut-down of Diego would shut-down and take the
of lowest haul-out occurrence (October noise-generating operations [turning off action described above. If abandonment
to November) was originally included in the equipment so that in-air sounds of the site is likely, monitoring would be
the City of San Diego’s Mitigated associated with construction no longer expanded away from the Children’s
Negative Declaration when it was exceed levels that are potentially Pool to determine if animals have been
anticipated that the City of San Diego harmful to marine mammals]) to marine temporarily displaced to known haul-
would obtain an IHA in the summer of mammals. More information about this out sites in the southern California area
2012 and begin demolition and measure is contained in the ‘‘Proposed (e.g., north end of Torrey Pines, cave on
construction activities in the fall of Monitoring’’ section (below). the exposed ocean side of Point Loma,
2012. This requirement has been etc.). For the purpose of this action,
removed because it is no longer Establishment of Buffer Zones NMFS will consider the Children’s Pool
practicable due to logistics, scheduling The City of San Diego shall establish site to possibly be abandoned if zero
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and to allow the planned activities to be buffer zones (i.e., where sound pressure harbor seals are present each day during
completed before the next pupping levels are at or above 90 dB re 20 mPa the daytime and nighttime hours for at
season. for harbor seals and/or at or above 100 least three tide cycles (a tide cycle is
The activities proposed by the dB re 20 mPa for all pinniped species approximately 2 weeks), but this cannot
applicant includes a variety of measures except harbor seals [for in-air noise]) be confirmed until observations
calculated to minimize potential around the construction activities so continue to be zero during a full
impacts on marine mammals, including: that in-air sounds associated with the pupping and molting season.
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However, the camera was not expected the authorization, and any long term injury, or mortality, should the
to replace NMFS-qualified PSOs at the impacts from the project. applicant, contractor, monitor or any
site making accurate counts, measuring A written log of dates and times of other individual associated with the
sound levels and observing the public monitoring activity will be kept. The log construction project observe an injured
and the construction, as well as the shall report the following information: or dead marine mammal, the incident
harbor seals. In the old camera view, a • Time of observer arrival on site; (regardless of cause) will be reported to
person may have been able to see visual • Time of the commencement of in- NMFS as soon as practicable. The report
evidence of Level B harassment but air noise generating activities, and should include species or description of
probably would not have been able to description of the activities; animal, condition of animal, location,
distinguish between harassment from • Distances to all marine mammals time first found, observed behaviors (if
construction activities and harassment relative to the sound source; alive) and photo or video, if available.
from the public since the camera had a • Distances from the sound meter to In the unanticipated event that the
limited scope and only showed the each sound-producing activity when City of San Diego discovers a live
Children’s Pool beach and pinnipeds conducting sound measurements; stranded marine mammal (sick and/or
(usually a specific portion of the beach, • For harbor seal observations, notes injured) at Children’s Pool, they shall
but not the reef nor nearby beaches). on seal behavior during noise-generating immediately contact Sea World’s
Consistent with NMFS procedures, activity, as described above, and on the stranded animal hotline at 1–800–541–
the following marine mammal number and distribution of seals 7235. Sea World shall also be notified
monitoring and reporting shall be observed in the project vicinity; if a dead stranded pinniped is found so
• For observations of all marine that a necropsy can be performed. In all
performed for the proposed action:
mammals other than harbor seals, the cases, NMFS shall be notified as well,
(1) The PSO shall be approved by
time and duration of each animal’s but for immediate response purposes,
NMFS prior to construction activities.
presence in the project vicinity; the Sea World shall be contacted first.
(2) The NMFS-approved PSO shall
number of animals observed; the
attend the project site prior to, during, Reporting Prohibited Take—In the
behavior of each animal, including any
and after construction activities cease unanticipated event that the specified
response to noise-generating activities;
each day throughout the construction activity clearly causes the take of a
• Time of the cessation of in-air noise
window. marine mammal in a manner prohibited
generating activities; and
(3) The PSO shall search for marine • Time of observer departure from by this IHA, such as an injury (Level A
mammals within the Children’s Pool site. harassment), serious injury, or
area. All monitoring data collected during mortality, the City of San Diego shall
(4) The PSO shall be present during construction would be included in the immediately cease the specified
construction activities to observe for the biological monitoring notes to be activities and immediately report the
presence of marine mammals in the submitted. A final report summarizing incident to the Chief of the Permits and
vicinity of the specified activity. All the construction monitoring and any Conservation Division, Office of
such activity would occur during general trends observed would also be Protected Resources, NMFS, at 301–
daylight hours (i.e., 30 minutes after submitted to NMFS within 90 days after 427–8401 and/or by email to
sunrise and 30 minutes before sunset). monitoring has ended during the period Jolie.Harrison@noaa.gov,
If inclement weather limits visibility of the lifeguard station construction. Howard.Goldstein@noaa.gov, and the
within the area of effect, the PSO would West Coast Regional Stranding
perform visual scans to the extent Proposed Reporting Coordinator (562–980–3230). The report
conditions allow. The City of San Diego would notify must include the following information:
(5) If marine mammals are sighted by NMFS Headquarters and the NMFS • Time, date, and location (latitude/
the PSO within the acoustic threshold Southwest Regional Office prior to longitude) of the incident;
areas, the PSO shall record the number initiation of the construction activities. • The type of activity involved;
of marine mammals within the area of A draft final report must be submitted • Description of the circumstances
effect and the duration of their presence to NMFS within 90 days after the during and leading up to the incident;
while the noise-generating activity is conclusion of the construction activities • Status of all sound source use in the
occurring. The PSO would also note of the Children’s Pool Lifeguard Station. 24 hours preceding the incident; water
whether the marine mammals appeared The report would include a summary of depth; environmental conditions (e.g.,
to respond to the noise and, if so, the the information gathered pursuant to the wind speed and direction, Beaufort sea
nature of that response. The PSO shall monitoring requirements set forth in the state, cloud cover, and visibility);
record the following information: Date IHA, including dates and times of • Description of marine mammal
and time of initial sighting, tidal stage, operations and all marine mammal observations in the 24 hours preceding
weather conditions, Beaufort sea state, sightings (dates, times, locations, the incident; species identification or
species, behavior (activity, group species, behavioral observations description of the animal(s) involved;
cohesiveness, direction and speed of [activity, group cohesiveness, direction • The fate of the animal(s); and
travel, etc.), number, group and speed of travel, etc.], tidal stage, photographs or video footage of the
composition, distance to sound source, weather conditions, Beaufort sea state animal (if equipment is available).
number of animals impacted, and wind force, associated construction Activities shall not resume until
construction activities occurring at time activities). A final report must be NMFS is able to review the
of sighting, and monitoring and submitted to the Regional Administrator circumstances of the prohibited take.
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mitigation measures implemented (or within 30 days after receiving comments NMFS shall work with the City of San
not implemented). The observations from NMFS on the draft final report. If Diego to determine the action necessary
would be reported to NMFS. no comments are received from NMFS, to minimize the likelihood of further
(6) A final report would be submitted the draft final report would be prohibited take and ensure MMPA
summarizing all in-air acoustic effects considered to be the final report. compliance. The City of San Diego may
from construction activities and marine While the IHA does not authorize not resume its activities until notified
mammal monitoring during the time of injury (i.e., Level A harassment), serious by NMFS via letter, email, or telephone.
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TABLE 2—NMFS’S CURRENT UNDERWATER AND IN-AIR ACOUSTIC EXPOSURE CRITERIA
Criterion Criterion definition Threshold
Underwater Impulsive (Non-Explosive) Sound
Level A harassment (injury) ............................... Permanent threshold shift (PTS) (Any level 180 dB re 1 μPa-m (root means square [rms])
above that which is known to cause TTS). (cetaceans).
190 dB re 1 μPa-m (rms) (pinnipeds).
Level B harassment ........................................... Behavioral disruption (for impulsive noise) ...... 160 dB re 1 μPa-m (rms).
Level B harassment ........................................... Behavioral disruption (for continuous noise) ... 120 dB re 1 μPa-m (rms).
In-Air Sound
Level A harassment ........................................... NA .................................................................... NA.
Level B harassment ........................................... Behavioral disruption ........................................ 90 dB re 20 μPa (harbor seals).
100 dB re 20 μPa (all other pinniped species).
NA (cetaceans).
NA = Not available or not assessed.
The City of San Diego and NMFS than 1 m; and changing direction of males and 2,211 juvenile males, 2,842
anticipate takes of Pacific harbor seals, current movements by individuals as adult females and 2,000 juvenile
California sea lions, and northern behavioral criteria for take by Level B females based on age and sex ratios
elephant seals by Level B (behavioral) harassment. presented in Harkonen et al., 1999) over
harassment only incidental to the With proposed construction activities the entire duration of the activities. An
construction project at the Children’s scheduled to begin in June 2015, the unknown portion of the incidental takes
Pool. No takes by injury (Level A City of San Diego expects a range of 0 will be from repeated exposures as
harassment), serious injury, or mortality to 190 harbor seals to be present daily harbor seals leave and return to the
during June and a seasonal decline
are expected. NMFS will consider Children’s Pool area. A polynomial
through November to about 0 to 50
pinnipeds behaviorally reacting to the curve fit to counts by month was used
harbor seals present daily. If all of the
construction activities by flushing into estimated harbor seals present are taken by the City of San Diego to estimate the
the water, moving more than 1 m (3.3 by incidental harassment each day, number of harbor seals expected to be
ft), but not into the water; becoming there could be a maximum of 10,000 hauled-out by day (see below and Figure
alert and moving, but not moving more takes (i.e., approximately 2,947 adult 2 of the IHA application).
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(NMFS, 2011) for this stock have shown from the specified activity would have NMFS preliminarily finds that small
that the population is increasing and is a negligible impact on the affected numbers of marine mammals will be
considered stable. Additionally, the species in the specified geographic taken relative to the populations of the
proposed construction activities would region. NMFS believes that the time affected species or stocks. See Table 2
increase sound levels in the period of the proposed construction for the proposed authorized take
environment in a relatively small area activities, the requirement to implement numbers of marine mammals.
surrounding the lifeguard station mitigation measures (e.g., prohibiting
Endangered Species Act
(compared to the range of the animals), construction activities during pupping
and some animals may only be exposed season, scheduling operations to periods NMFS (Permits and Conservation
to and harassed by sound for less than of the lowest haul-out occurrence, Division) has determined that an ESA
a day. visual and acoustic barriers, and the section 7 consultation for the issuance
NMFS’s practice has been to apply the addition of a new measure that helps of an IHA under section 101(a)(5)(D) of
90 dB re 20 mPa and 100 dB re 20 mPa protect against unexpected the MMPA for this activity is not
received level threshold for in-air sound abandonment of the site), and the necessary for any ESA-listed marine
levels to determine whether take by inclusion of the monitoring and mammal species under its jurisdiction,
Level B harassment occurs. Southall et reporting measures, will reduce the as the proposed action would not affect
al. (2007) provide a severity scale for amount and severity of the potential ESA-listed species.
ranking observed behavioral responses impacts from the activity to the degree National Environmental Policy Act
of both free-ranging marine mammals that will have a negligible impact on the
and laboratory subjects to various types species or stocks in the action area. To meet NMFS’s National
of anthropogenic sound (see Table 4 in Based on the analysis contained Environmental Policy Act (NEPA; 42
Southall et al. [2007]). NMFS has not herein of the likely effects of the U.S. C. 4321 et seq.) requirements for
established a threshold for Level A proposed specified activity on marine the issuance of an IHA to the City of San
harassment (injury) for marine mammals and their habitat, and taking Diego, NMFS prepared an
mammals exposed to in-air noise, into consideration the implementation Environmental Assessment (EA) in 2013
however, Southall et al. (2007) of the proposed monitoring and for a similar activity titled
recommends 149 dB re 20 mPa (peak mitigation measures, NMFS finds that Environmental Assessment on the
flat) as the potential threshold for injury the total marine mammal take from the Issuance of an Incidental Harassment
from in-air noise for all pinnipeds. No City of San Diego’s activities would Authorization to the City of San Diego
in-air sounds from proposed have a negligible impact on the affected to Take Marine Mammals by
construction activities would exceed marine mammal species or stocks. Harassment Incidental to Demolition
110 dB at the source and no measured and Construction Activities at the
Small Numbers Children’s Pool Lifeguard Station in La
sounds approached that sound level in
2013. As mentioned previously, NMFS Jolla, California to comply with the
Of the 3 marine mammal species estimates that 3 species of marine Council of Environmental Quality (CEQ)
under NMFS jurisdiction that may or mammals under its jurisdiction could be regulations and NOAA Administrative
are known to likely occur in the action potentially affected by Level B Order (NAO) 216–6. NMFS will
area, none are listed as threatened or harassment over the course of the IHA. evaluate the proposed action to
endangered under the ESA. No It is estimated that up to 600 individual determine whether the 2013 EA
incidental take has been requested to be Pacific harbor seals, 2 individual supports the City of San Diego’s 2015
authorized for ESA-listed species as California sea lions, and 1 northern IHA request.
none are expected to be within the elephant seal would be taken (multiple
times) by Level B harassment, which Proposed Authorization
action area. To protect these animals
(and other marine mammals in the would be approximately 1.93, less than As a result of these preliminary
action area), the City of San Diego shall 0.01, and less than 0.01% of the determinations, NMFS proposed to
schedule construction activities with respective California, U.S., and issue an IHA to the City of San Diego
highest sound levels during the daily California breeding stocks. The for conducting construction activities at
period of lowest haul-out occurrence; population estimates for the marine the Children’s Pool Lifeguard Station in
limit activities to the hours of daylight; mammal species that may be taken by La Jolla, CA, provided the previously
erect a temporary visual and acoustic Level B harassment were provided in mentioned mitigation, monitoring, and
barrier; use PSOs and prohibit Table 2 of this document. reporting requirements are incorporated.
construction activities during harbor NMFS has determined, provided that The duration of the IHA would not
seal pupping season. No injury, serious the aforementioned proposed mitigation exceed one year from the date of its
injury, or mortality is expected to occur and monitoring measures are issuance. The proposed IHA language is
and due to the nature, degree, and implemented, that the impact of the provided below:
context of the Level B harassment proposed construction activities at the The City of San Diego, Public Works
anticipated, the proposed activity is not Children’s Pool Lifeguard Station in La Department, Engineering and Capital
expected to impact rates of recruitment Jolla, CA, June 2015 to June 2016, may Projects Branch, Architectural
or survival. result, at worst, in a temporary Engineering and Parks Division, 525 B
Although behavioral modifications, modification in behavior and/or low- Street, Suite 750, MS 908A, San Diego,
including temporarily vacating the area level physiological effects (Level B California 92101, is hereby authorized
during the proposed construction harassment) of small numbers of certain under section 101(a)(5)(D) of the Marine
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activities, may be made by these species species of marine mammals. Based on Mammal Protection Act (16 U.S.C.
to avoid the resultant acoustic the analysis contained herein of the 1371(a)(5)(D)), to harass small numbers
disturbance, the availability of alternate likely effects of the specified activity on of marine mammals incidental to the
areas within these areas for species and marine mammals and their habitat, and construction activities at the Children’s
the short and sporadic duration of the taking into consideration the Pool Lifeguard Station, June 2015
activities, have led NMFS to determine implementation of the proposed through June 2016, contingent upon the
that the taking by Level B harassment mitigation and monitoring measures, following conditions:
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to the construction activities and/or the and compare it to the mean of the lower of that exposure on the individuals that
presence of the public on the beach and 95 percent confidence interval in Figure have been exposed. NMFS will consider
around the Children’s Pool area. A PSO 3 (see above). If the observed mean is pinnipeds flushing into the water;
shall record the number of people on lower, the City of San Diego shall shut- moving more than 1 m (3.3 ft), but not
the beach and surrounding areas as well down construction activities and work into the water; becoming alert and
as their location relative to the animals. with NMFS and other harbor seal moving, but not moving more than 1 m;
experts (e.g., Mark Lowry, Dr. Sarah and changing direction of current
Buffer Zones
Allen, Dr. Pamela Yochem, and/or Dr. movement by individuals as behavioral
(i) Buffer zones shall be established Brent Stewart) to develop and criteria for take by Level B harassment.
(i.e., where sound pressure levels [SPLs] implement a revised mitigation plan to (iii) A description of the
are at or above 90 decibels (dB) re 20 further reduce the number of takes and implementation and effectiveness of the:
mPa for harbor seals and/or at or above potential impacts. Once a week every monitoring and mitigation measures of
100 dB re 20 mPa for all pinniped week thereafter, the City of San Diego the IHA.
species except harbor seals [for in-air shall take the same mean of observed (b) Submit a final report to the Chief,
noise]) around the construction harbor seals across the previous three Permits and Conservation Division,
activities so that in-air sounds tide cycles (a tide cycle is Office of Protected Resources, NMFS,
associated with the construction approximately 2 weeks) and compare it within 30 days after receiving comments
activities no longer exceed levels that to the 95% lower confidence interval in from NMFS on the draft report. If NMFS
are potentially harmful to marine Figure 3 for the same time period. If the decides that the draft report needs no
mammals. observed mean is lower, the City of San comments, the draft report shall be
Diego shall shut-down and take the considered to be the final report.
In-Air Noise Monitoring
action described above. If abandonment 8. In the unanticipated event that the
(j) In-air noise monitoring and of the site is likely, monitoring shall be City of San Diego discovers a live
reporting shall be performed during the expanded away from the Children’s stranded marine mammal (sick and/or
construction activities at and near the Pool to determine if animals have been injured) at Children’s Pool, they shall
Children’s Pool Lifeguard Station. The temporarily displaced to haul-out sites immediately contact Sea World’s
PSO shall have access to handheld in the southern California area (e.g., stranded animal hotline at 1–800–541–
digital sound level measuring devices. Torrey Pines, Point Loma, etc.). 7235. Sea World shall also be notified
The study will characterize in-air sound for dead stranded pinnipeds so that a
levels in the area related to (e.g., 7. Reporting Requirements necropsy can be performed. In all cases,
construction equipment including The City of San Diego is required to: NMFS shall be notified as well, but for
backhoe, dump truck, cement truck, air (a) Submit a draft report on all immediate responses purposes, Sea
compressor, electric screw guns, activities and monitoring results to the World shall be contacted first.
jackhammer, concrete saw, chop saw, Office of Protected Resources, NMFS,
and hand tools) and in the absence (as Reporting Prohibited Take
within 90 days of the completion of the
a background and baseline [i.e., construction activities at the Children’s In the unanticipated event that the
ambient] for the project) of all Pool Lifeguard Station. This report must specified activity clearly causes the take
construction activities, and confirm or contain and summarize the following of a marine mammal in a manner
identify harassment isopleths for all information: prohibited by this Authorization, such
types of and construction activities (i) Dates, times, locations, weather, as an injury (Level A harassment),
conducted. To better assess in-air sound sea conditions (including Beaufort sea serious injury or mortality, the City of
propagation and source levels, the state and wind speed), and associated San Diego shall immediately cease the
distance from the sound meter to each activities during all construction specified activities and immediately
sound-producing activity when activities and marine mammal sightings; report the incident to the Chief of the
conducting sound measurements shall (ii) Species, number, location, Permits and Conservation Division,
be noted. Monitoring shall be conducted distance from the PSO, and behavior of Office of Protected Resources, NMFS, at
three to five days prior to construction any marine mammals, as well as 301–427–8401 and/or by email to
activities and shall include hourly associated construction activities, Jolie.Harrison@noaa.gov and
systematic counts of pinnipeds using observed throughout all monitoring Howard.Goldstein@noaa.gov and the
the beach, Seal Rock, and associated activities. West Coast Regional Stranding
reef areas to provide baseline data (iii) An estimate of the number (by Coordinator (562–980–3230). The report
regarding recent haul-out behavior and species) of marine mammals that: (A) must include the following information:
patterns as well as background noise are known to have been exposed to the (a) Time, date, and location (latitude/
levels near the time and construction construction activities (based on visual longitude) of the incident; the type of
activities. Monitoring shall continue for observation) at received levels greater activity involved; description of the
60 days following the end of demolition than or equal 90 dB re 20 mPa for harbor circumstances during and leading up to
and construction activities. Following seals and 100 dB re 20 mPa for all other the incident; status of all sound source
construction, the City of San Diego will pinniped species for in-air noise with a use in the 24 hours preceding the
have a program where a PSO that will discussion of any specific behaviors incident; water depth; environmental
randomly select a day per week to visit those individuals exhibited; and (B) conditions (e.g., wind speed and
the Children’s Pool. may have been exposed (based on direction, Beaufort sea state, cloud
reported values and modeling cover, and visibility); description of
Potential Abandonment Survey
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measurements for the construction marine mammal observations in the 24
(k) After the first two months of equipment) to the construction activities hours preceding the incident; species
monitoring during construction in-air noise at received levels greater identification or description of the
activities, the City of San Diego shall than or equal 90 dB re 20 mPa for harbor animal(s) involved; the fate of the
take the mean number of observed seals and 100 dB re 20 mPa for all other animal(s); and photographs or video
harbor seals at the Children’s Pool in a pinniped species with a discussion of footage of the animal (if equipment is
24-hour period across the two months the nature of the probable consequences available).
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Activities shall not resume until Activities may continue while NMFS I. Background
NMFS is able to review the reviews the circumstances of the NMFS’ authority to make the loan
circumstances of the prohibited take. incident. resides in sections 1111 and 1112 of the
NMFS shall work with the City of San 9. A copy of this Authorization must Merchant Marine Act, 1936 (46 App.
Diego to determine what is necessary to be in the possession of all contractors U.S.C. 1279(f) and 1279(g)(MMA)(title
minimize the likelihood of further and PSOs operating under the authority XI)).
prohibited take and ensure MMPA of this IHA. The Program was authorized in the
compliance. The City of San Diego may Consolidated Appropriations Act of
not resume their activities until notified Request for Public Comments
2005 (Section 209 of Title II of Division
by NMFS via letter or email, or via NMFS requests comment on our B of Pub. L. 108–447) and waives all of
telephone. analysis, the draft authorization, and the fishing capacity reduction program
any other aspect of the preliminary requirements of the Magnuson-Stevens
Reporting an Injured or Dead Marine
determinations and notice of the Act (Sections 312(b)–(e)) codified at 16
Mammal with an Unknown Cause of
proposed IHA for the City of San Diego’s U.S.C. 1801 et seq. except for Sections
Death
construction activities at the La Jolla (b)(1)(C) and (d) which state: (1) It must
In the event that the City of San Diego Children’s Pool Lifeguard Station. be cost-effective; and (2) it is subject to
discovers an injured or dead marine Please include with your comments any a referendum approved by a majority of
mammal, and the lead PSO determines supporting data or literature citations to permit holders.
that the cause of the injury or death is help inform our final decision on the NMFS published proposed program
unknown and the death is relatively City of San Diego’s request for an regulations on May 23, 2011 (76 FR
recent (i.e., in less than a moderate state MMPA authorization. Concurrent with 29707), and final program regulations
of decomposition as described in the the publication of this notice in the on October 6, 2011 (76 FR 61985), to
next paragraph), the City of San Diego Federal Register, NMFS is forwarding implement the reduction program.
will immediately report the incident to copies of this IHA application to the Subsequently, the Southeast
the Chief of the Permits and Marine Mammal Commission and its Revitalization Association submitted a
Conservation Division, Office of Committee of Scientific Advisors. capacity reduction plan to NMFS.
Protected Resources, NMFS, at 301– NMFS approved the plan on February
427–8401, and/or by email to Dated: May 11, 2015.
Perry F. Gayaldo, 24, 2012. NMFS published the list of
Jolie.Harrison@noaa.gov and eligible voters on March 1, 2012 (77 FR
Howard.Goldstein@noaa.gov, and the Deputy Director, Office of Protected
Resources, National Marine Fisheries Service.
12568) and the notice of referendum
NMFS West Coast Regional Office (1– period on March 29, 2012 (77 FR
866–767–6114) and/or the West Coast [FR Doc. 2015–11994 Filed 5–18–15; 8:45 am]
19004). Interested persons should
Regional Stranding Coordinator (562– BILLING CODE 3510–22–P
review these for further program details.
980–3230). The report must include the NMFS conducted a referendum where
same information identified in the the majority of permit holders voted to
Condition 8(a) above. Activities may DEPARTMENT OF COMMERCE repay a fishing capacity reduction loan
continue while NMFS reviews the to purchase the permits identified in the
circumstances of the incident. NMFS National Oceanic and Atmospheric
Administration reduction plan.
will work with the City of San Diego to On May 7, 2012, NMFS published
determine whether modifications in the RIN 0648–XD943 another Federal Register document (77
activities are appropriate. FR 26744) advising the public that
Reporting an Injured or Dead Marine Fishing Capacity Reduction Program NMFS would tender the program’s
Mammal Not Related to the Activities for the Southeast Alaska Purse Seine reduction payments to the 64 selected
Salmon Fishery bidders who would permanently stop
In the event that the City of San Diego fishing with the permits they had
discovers an injured or dead marine AGENCY: National Marine Fisheries relinquished in return for reduction
mammal, and the lead PSO determines Service (NMFS), National Oceanic and payments. Subsequently, NMFS
that the injury or death is not associated Atmospheric Administration, disbursed $13,133,030 in reduction
with or related to the activities Commerce. payments to the 64 selected bidders.
authorized in Condition 2 to 4 of this ACTION: Notice of fee rate adjustment. NMFS published a Federal Register
Authorization (e.g., previously wounded notice on July 16, 2012 (77 FR 41754)
animal, carcass with moderate to SUMMARY: NMFS issues this notice to informing the public that fee collection
advanced decomposition, or scavenger decrease the fee rate to repay the would begin on July 22, 2012. Since
damage), the City of San Diego shall $13,133,030 reduction loan for the then all harvesters of Southeast Alaska
report the incident to the Chief of the fishing capacity reduction program in purse seine salmon must pay the fee and
Permits and Conservation Division, the Southeast Alaska purse seine all fish buyers of Southeast Alaska purse
Office of Protected Resources, NMFS, at salmon fishery. seine salmon must collect the fee in
301–427–8401, and/or by email to DATES: The fee rate decrease is effective accordance with the applicable
Jolie.Harrison@noaa.gov and June 1, 2015. regulations.
Howard.Goldstein@noaa.gov, and the ADDRESSES: Send questions about this NMFS published a notice in the
NMFS West Coast Regional Office (1– notice to Paul Marx, Chief, Financial Federal Register on June 5, 2013 (78 FR
866–767–6114) and/or the West Coast Services Division, National Marine 33810) to decrease the fee rate from
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Regional Stranding Coordinator (562– Fisheries Service, 1315 East-West 3.0% of landed value and any
980–3230), within 24 hours of the Highway, Silver Spring, MD 20910– subsequent bonus payments to 1.5%,
discovery. The City of San Diego shall 3282. effective June 1, 2013.
provide photographs or video footage (if
available) or other documentation of the FOR FURTHER INFORMATION CONTACT: Paul II. Purpose
stranded animal sighting to NMFS and Marx, (301) 427–8771. The purpose of this notice is to adjust
the Marine Mammal Stranding Network. SUPPLEMENTARY INFORMATION: the fee rate for the reduction fishery in
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Document Created: 2015-12-15 15:30:07
Document Modified: 2015-12-15 15:30:07
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice; proposed Incidental Harassment Authorization (IHA); request for comments. | |
| Dates | Comments and information must be received no later than June 18, 2015. | |
| Contact | Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301-427-8401. | |
| FR Citation | 80 FR 28588 | |
| RIN Number | 0648-XD80 |
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