80 FR 39999 - 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 133 (July 13, 2015)
National Oceanic and Atmospheric Administration
Federal Register Volume 80, Issue 133 (July 13, 2015)
| Page Range | 39999-40016 | |
| FR Document | 2015-16965 |
[Federal Register Volume 80, Number 133 (Monday, July 13, 2015)] [Notices] [Pages 39999-40016] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-16965] ----------------------------------------------------------------------- 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; issuance of an Incidental Harassment Authorization (IHA). ----------------------------------------------------------------------- SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), notification is hereby given that NMFS has issued an IHA to 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. DATES: Effective June 28, 2015 to June 27, 2016. ADDRESSES: A copy of the IHA and the IHA application are available by writing to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910 or by telephone to the contacts listed below (see FOR FURTHER INFORMATION CONTACT). 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/construction.htm. 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.) direct 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. An 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 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. NMFS published a notice making preliminary determinations and proposing to issue an IHA on May 19, [[Page 40000]] 2015 (80 FR 28588). The notice initiated a 30-day public comment period. The City of San Diego will undertake the 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 will 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 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 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. 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. Planned construction activities will 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 planned activities depend on logistics and scheduling. The IHA is valid through June 2016 to allow for construction delays. 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 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). 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] [[Page 40001]] 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 will 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 will 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 planned 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 there will 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 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. Comments and Responses A notice of preliminary determinations and proposed IHA for the City of San Diego's construction activities as published in the Federal Register on May 19, 2015 (80 FR 28588). During the 30-day public comment period, NMFS received comments from the Marine Mammal Commission (Commission) and one private citizen. The comments are posted online at: http://www.nmfs.noaa.gov/pr/permits/ [[Page 40002]] incidental/construction.htm. Following are the substantive comments and NMFS's responses: Comment 1: The Commission concurs with NMFS's preliminary findings and recommends that NMFS issue the requested IHA, subject to inclusion of the proposed mitigation, monitoring, and reporting measures. Response: NMFS concurs with the Commission's recommendation and has issued the IHA to the City of San Diego. Comment 2: One private citizen did not oppose the issuance of an IHA by NMFS and the conduct of the construction activities at the Children's Pool Lifeguard Station at La Jolla, CA. The commenter provided many descriptions and photographs of the public viewing and interacting with Pacific harbor seals on the beach and in the water at the Children's Pool. Also, the commenter provided behavioral descriptions of harbor seals and how they may be acclimated to human presence and noise at this site. Many of the commenter's statements were not germane to the proposed IHA or have not identified or provided scientific publications supporting their statement which limits our ability to respond to commenter's statements. Response: As described in detail in the notice of the proposed IHA (80 FR 28588, May 19, 2015), as well as in this document, NMFS does not believe the City of San Diego's construction activities will cause injury, serious injury, or mortality to marine mammals, and no take by injury, serious injury, or mortality is authorized. The required monitoring and mitigation measures that the City of San Diego will implement during the construction activities will further reduce the potential impacts on marine mammals to the lowest level practicable. NMFS anticipates only behavioral disturbance to occur during the conduct of the construction activities at the Children's Pool Lifeguard Station in La Jolla, CA. Description of Marine Mammals in the Specified Geographic Area of the Specified Activity Three species of pinnipeds are known to or could occur in the Children's Pool planned 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 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 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 specified activities. Table 1 below identifies the cetacean and pinnipeds species, their habitat, occurrence, range, abundance, and conservation status in the nearshore area of the general region of the project area. Table 1--The Habitat, Occurrence, Range, 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 estuaries. 1 km of shore. between 45[deg] Coastal 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 (Mirounga Coastal, pelagic Common............ Eastern and 179,000 (81,368)-- NL................ NC. angustirostris). when not Central North California migrating. Pacific--Alaska breeding stock. to Mexico. [[Page 40003]] California sea lion (Zalophus Coastal, shelf.... Common............ Eastern North 296,750 (153,337)-- NL................ NC. californianus). Pacific Ocean-- U.S. stock. Alaska to Mexico. 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. California to stock. 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 to Mexico. 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 [[Page 40004]] 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 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 will 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. [[Page 40005]] 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 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 Specified Activity on Marine Mammals This section includes a summary and discussion of the ways that the types of stressors associated with the planned 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 ``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; [[Page 40006]] 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 cetacean and 3 pinniped species) are likely to occur in the planned action area. Of the 3 pinniped species likely to occur in the City of San Diego's planned 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 ``Mitigation'' and ``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 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 construction activities are beyond or outside the habitat areas where harbor seals and other pinnipeds are found. Visual barriers will 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 will make observations and attempt to distinguish and attribute any observed harassment to the public or to the 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 will 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 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 action will result in no impacts to marine mammal habitat beyond rendering the areas immediately around the Children's Pool less desirable during construction activities. 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 will implement the following 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 [[Page 40007]] to dampen the acoustic sound sources, but do not prevent sound from permeating the environment. The 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 will 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 will 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 planned 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 will be erected and maintained for the duration of the project to shield construction activities from beach view. The temporary barrier shall consist of 1/2 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 construction activities. Once the walls of the lifeguard station building are in place, much of the construction activities will take place on the bluff above the beach (thus out of sight) and inside the building, which will provide a visual and partial sound barrier. Protected Species Observers Trained PSOs will 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 ``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 [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. 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 will 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 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 will 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 will shut-down and take the action described above. If abandonment of the site is likely, monitoring will 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 [[Page 40008]] continue to be zero during a full pupping and molting season. Figure 1. Estimated total harbor seals by month based on counts at the site by Hanan & Associates, Yochem and Stewart, and Children's Pool docents. The polynomial curve fits to counts by months, which includes the projected mean as well as the upper 95% and lower 95% confidence intervals, was used to estimate harbor seals expected to be hauled-out by day. [GRAPHIC] [TIFF OMITTED] TN13JY15.170 More information regarding the City of San Diego's monitoring and mitigation measures for the planned construction activities at the Children's Pool Lifeguard Station can be found in the IHA application. 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. Based on NMFS's evaluation of the applicant's 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. 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 [[Page 40009]] of the level of taking or impacts on populations of marine mammals that are expected to be present in the 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. 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 construction activities. During the construction activities, monitoring shall assess behavior and potential behavioral responses to construction noise and activities. PSOs would observe the 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 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 will 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. 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 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. [[Page 40010]] (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 will 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 will also be submitted to NMFS within 90 days after monitoring has ended during the period of the lifeguard station construction. Reporting The City of San Diego will 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. 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], [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 will work with the City of San Diego to determine whether modification of the activities is appropriate. [[Page 40011]] 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 [micro]Pa (range of 55.6 to 93.7 dB re 20 [micro]Pa) during non- demolition and construction activities and 70.3 dB re 20 [micro]Pa (range of 50.7 to 103.1 dB re 20 [micro]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 [micro]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 [micro]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 [micro]Pa (range of 51.5 to 97.2 dB re 20 [micro]Pa) during non- construction activities and 71.3 dB re 20 [micro]Pa (range of 49.4 to 102.7 dB re 20 [micro]Pa) during construction activities. During 2014, measured sound levels from the construction equipment reaching the pinnipeds did not exceed approximately 90 dB re 20 [micro]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. Figure 2. Daily peak counts and long-term trends with a 95% confidence interval of Pacific harbor seals at Children's Pool from June 2014 to February 2015 based on monitoring at the site by Hanan & Associates. [[Page 40012]] [GRAPHIC] [TIFF OMITTED] TN13JY15.171 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]. 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 180 dB re 1 threshold shift [micro]Pa-m (root (PTS) (Any level means square above that which [rms]) is known to cause (cetaceans) TTS). 190 dB re 1 [micro]Pa-m (rms) (pinnipeds). Level B harassment.............. Behavioral 160 dB re 1 disruption (for [micro]Pa-m impulsive noise). (rms). Level B harassment.............. Behavioral 120 dB re 1 disruption (for [micro]Pa-m continuous noise). (rms). In-Air Sound ------------------------------------------------------------------------ Level A harassment.............. NA................ NA [[Page 40013]] Level B harassment.............. Behavioral 90 dB re 20 disruption. [micro]Pa (harbor seals) 100 dB re 20 [micro]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 planned 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). Figure 3. Estimated total harbor seals by month based on counts at the site by Hanan & Associates, Yochem and Stewart, and Children's Pool docents. The polynomial curve fits to counts by months was used to estimate harbor seals expected to be hauled-out by day. [GRAPHIC] [TIFF OMITTED] TN13JY15.172 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 will be taken by Level B harassment multiple times during the construction activities. Very few California sea lions and/or northern elephant seals are ever observed at the Children's Pool (i.e., one [[Page 40014]] 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 action area can be found in Table 3. Table 3--Summary of the Authorized Incidental Take by Level B Harassment of Pinnipeds for the City of San Diego's Construction Activities Generating In-Air Noise at the Children's Pool Lifeguard Station in La Jolla, CA ---------------------------------------------------------------------------------------------------------------- Approximate Take Estimated percentage of Species authorization number of Abundance estimated Population (number of individuals stock trend exposures) taken (individuals) ---------------------------------------------------------------------------------------------------------------- Pacific harbor seal.......... 10,000 600 30,968--Californ 1.93 Increased in ia stock. California 1981 to 2004 California sea lion.......... 100 2 296,750--U.S. <0.01 Increasing stock. Northern elephant seal....... 25 1 179,000--Califor <0.01 Increasing 3.8% nia breeding annually since stock. 1988 ---------------------------------------------------------------------------------------------------------------- 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 will not have an unmitigable adverse impact on the availability of such species or stocks for subsistence purposes. Analysis and 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, effects on habitat, and the status of the species. In making a negligible impact determination, NMFS evaluated factors such as: (1) The number of anticipated serious injuries or mortalities; (2) The number and nature of anticipated injuries; (3) The number, nature, intensity, and duration of Level B harassment; and (4) 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); (5) The status of the stock or species of marine mammals (e.g., depleted, ESA-listed, decreasing, increasing, stable, impact relative to the size of the population); (6) Impacts on habitat affecting rates of recruitment/survival; and (7) The effectiveness of monitoring and mitigation measures. To avoid repetition, the discussion of NMFS's analyses applies to all the species or stocks for which take is being authorized (listed in Table 3), given that the anticipated effects of these construction activities on marine mammals are expected to be relatively similar in nature in this case. Additionally, there is no information about the nature or severity of the impacts, or the size, status, or structure of any species or stock that would lead to a different analysis for this activity, else species-specific factors would be identified and analyzed. NMFS had determined that the specified activities associated with the construction activities are not likely to cause long-term behavioral disturbance, PTS, or other (non-auditory) injury, serious injury, or death, based on the analysis contained in the notice of the proposed IHA (80 FR 28588, May 19, 2015). NMFS also considered the following factors: 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 planned 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, [[Page 40015]] there is a high likelihood that many of the harbor seals present during the 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 project scheduling avoids sensitive life stages for Pacific harbor seals. Construction 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 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 required 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 (NMFS, 2011) for this stock have shown that the population is increasing and is considered stable. Additionally, the 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 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 activity is not expected to impact rates of recruitment or survival. Although behavioral modifications, including temporarily vacating the area during the 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 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 specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the City of San Diego's activities will 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. NMFS makes its small numbers determination based on the numbers or proportion of marine mammals that will be taken relative to the populations of the affected species or stocks. 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 [[Page 40016]] 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 mitigation and monitoring measures are implemented, that the impact of the 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 mitigation and monitoring measures, NMFS 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 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 planned action will 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 prepared and signed a Finding of No Significant Impact (FONSI) determining that preparation of an Environmental Impact Statement was not required. The FONSI was signed on June 28, 2013 prior to the issuance of the IHA for the City of San Diego's construction activities from June 2013 to June 2014. The currently planned construction activities that will be covered by the IHA from June 2015 to June 2016 are similar to the demolition and construction activities described in the 2013 EA. NMFS has reviewed CEQ's regulations and has determined that it is not necessary to supplement the 2013 EA because the effects of this IHA fall within the scope of those documents and do not require further supplementation. Based on the public comments received in response to the publication in the Federal Register notice and proposed IHA, NMFS has reaffirmed its FONSI. Authorization NMFS has issued an IHA to the City of San Diego for construction activities at the Children's Pool Lifeguard Station at La Jolla, CA, incorporating the previously mentioned mitigation, monitoring, and reporting requirements. Dated: June 30, 2015. Perry F. Gayaldo, Deputy Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2015-16965 Filed 7-10-15; 8:45 am] BILLING CODE 3510-22-P
![Federal Register / Vol. 80, No. 133 / Monday, July 13, 2015 / Notices 39999
written description of the subject DEPARTMENT OF COMMERCE certain findings are made and either
merchandise is dispositive. regulations are issued or, if the taking is
National Oceanic and Atmospheric limited to harassment, a notice of a
Final Results of Changed Administration proposed authorization is provided to
Circumstances Review the public for review.
RIN 0648–XD807
Because no party submitted a case An authorization for the incidental
brief in response to the Department’s Takes of Marine Mammals Incidental to takings shall be granted if NMFS finds
Preliminary Results, and because the Specified Activities; Construction that the taking will have a negligible
record contains no other information or Activities at the Children’s Pool impact on the species or stock(s), will
evidence that calls into question the Lifeguard Station at La Jolla, California not have an unmitigable adverse impact
Preliminary Results, the Department on the availability of the species or
AGENCY: National Marine Fisheries stock(s) for subsistence uses (where
continues to find that Zhejiang Fuma is Service (NMFS), National Oceanic and relevant), and if the permissible
the successor-in-interest to Huzhou Atmospheric Administration (NOAA), methods of taking and requirements
Fuma, and is entitled to Huzhou Fuma’s Commerce. pertaining to the mitigation, monitoring,
cash deposit rate with respect to entries ACTION: Notice; issuance of an Incidental and reporting of such takings are set
of merchandise subject to the AD order Harassment Authorization (IHA). forth. NMFS has defined ‘‘negligible
on MLWF from the PRC.5 impact’’ in 50 CFR 216.103 as ‘‘. . . an
SUMMARY: In accordance with the
Instructions to U.S. Customs and impact resulting from the specified
Marine Mammal Protection Act
Border Protection activity that cannot be reasonably
(MMPA), notification is hereby given
expected to, and is not reasonably likely
Based on these final results, we will that NMFS has issued an IHA to the City
to, adversely affect the species or stock
instruct U.S. Customs and Border of San Diego for an IHA to take small
through effects on annual rates of
Protection to collect estimated ADs for numbers of marine mammals, by Level
recruitment or survival.’’
all shipments of subject merchandise B harassment, incidental to construction
Section 101(a)(5)(D) of the MMPA
exported by Zhejiang Fuma and entered, activities at the Children’s Pool
established an expedited process by
Lifeguard Station in La Jolla, California.
or withdrawn from warehouse, for which citizens of the United States can
consumption on or after the publication DATES: Effective June 28, 2015 to June apply for an authorization to
date of this notice in the Federal 27, 2016. incidentally take small numbers of
Register at the current AD cash deposit ADDRESSES: A copy of the IHA and the marine mammals by harassment.
rate for Huzhou Fuma (i.e., 58.84 IHA application are available by writing Section 101(a)(5)(D) of the MMPA
percent). This cash deposit requirement to Jolie Harrison, Chief, Permits and establishes a 45-day time limit for
shall remain in effect until further Conservation Division, Office of NMFS’s review of an application
notice. Protected Resources, National Marine followed by a 30-day public notice and
Fisheries Service, 1315 East-West comment period on any proposed
Notification to Interested Parties Highway, Silver Spring, MD 20910 or by authorizations for the incidental
telephone to the contacts listed below harassment of small numbers of marine
This notice serves as a final reminder
(see FOR FURTHER INFORMATION CONTACT). mammals. Within 45 days of the close
to parties subject to administrative An electronic copy of the IHA
protective order (‘‘APO’’) of their of the public comment period, NMFS
application containing a list of the must either issue or deny the
responsibility concerning the references used in this document may
disposition of proprietary information authorization.
be obtained by writing to the address Except with respect to certain
disclosed under APO in accordance specified above, telephoning the contact
with 19 CFR 351.305(a)(3). Timely activities not pertinent here, the MMPA
listed below (see FOR FURTHER defines ‘‘harassment’’ as: Any act of
written notification of the return/ INFORMATION CONTACT), or visiting the
destruction of APO materials or pursuit, torment, or annoyance which (i)
Internet at: http://www.nmfs.noaa.gov/ has the potential to injure a marine
conversion to judicial protective order is pr/permits/incidental/construction.htm. mammal or marine mammal stock in the
hereby requested. Failure to comply Documents cited in this notice, wild [Level A harassment]; or (ii) has
with the regulations and terms of an including the IHA application, may also the potential to disturb a marine
APO is a sanctionable violation. be viewed, by appointment, during mammal or marine mammal stock in the
We are issuing and publishing this regular business hours, at the wild by causing disruption of behavioral
final results notice in accordance with aforementioned address. patterns, including, but not limited to,
sections 751(b) and 777(i) of the Tariff FOR FURTHER INFORMATION CONTACT: migration, breathing, nursing, breeding,
Act of 1930, as amended, and 19 CFR Howard Goldstein or Jolie Harrison, feeding, or sheltering [Level B
351.216. Office of Protected Resources, NMFS, harassment].
Dated: July 7, 2015.
301–427–8401.
Summary of Request
SUPPLEMENTARY INFORMATION:
Paul Piquado,
On February 25, 2015, NMFS received
Assistant Secretary for Enforcement and Background an application from the City of San
Compliance. Sections 101(a)(5)(A) and (D) of the Diego, Engineering and Capital Projects
asabaliauskas on DSK5VPTVN1PROD with NOTICES
[FR Doc. 2015–17081 Filed 7–10–15; 8:45 am] MMPA (16 U.S.C. 1361 et seq.) direct Department, requesting an IHA for the
BILLING CODE 3510–DS–P the Secretary of Commerce (Secretary) taking of marine mammals incidental to
to allow, upon request, the incidental, construction activities. NMFS
5 For a complete discussion of the Department’s but not intentional, taking of small determined that the IHA application
findings, which remain unchanged in these final numbers of marine mammals by United was adequate and complete on April 9,
results and which are herein incorporated by
reference and adopted by this notice, see generally
States citizens who engage in a specified 2015. NMFS published a notice making
the Preliminary Decision Memorandum activity (other than commercial fishing) preliminary determinations and
accompanying the Preliminary Results. within a specified geographical region if proposing to issue an IHA on May 19,
VerDate Sep<11>2014 22:06 Jul 10, 2015 Jkt 235001 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 E:\FR\FM\13JYN1.SGM 13JYN1](https://thefederalregister.org/doc/80_FR_40132/page/1.svg)
![Federal Register / Vol. 80, No. 133 / Monday, July 13, 2015 / Notices 40001
view of the beach and nearby reef areas) The notice of the final IHA for the at five feet from the sound sources. The
with a single occupancy observation City of San Diego’s demolition and 110 dB estimate is based on equipment
space, radio storage closet, and exterior construction activities that was manufacturers’ estimates obtained by
catwalk. Interior stairs will link the published in the Federal Register on the construction contractor. The City of
floors. The existing below grade July 8, 2013 (78 FR 40705) provides a San Diego utilized published or
retaining walls will remain in place and detailed summary on phases 1 to 4 (i.e., manufacturers’ measurement data based
new retaining walls will be constructed mobilization and temporary facilities, on the planned equipment (i.e., a
for a ramp from street level to the lower demolition and site clearing, site backhoe, dump truck, cement pump, air
level for emergency vehicle beach preparation and utilities, and building compressor, electric screw guns,
access and pedestrian access to the foundation). Phases 5 to 9 include jackhammers, concrete saw, chop saw,
lower level restrooms and showers. A (phases overlap in time): and hand tools) to be utilized on the
5.6 m (18. 5 ft) wall will be located (5.) Building shell: project site. Operation of the equipment
along the north end of the lower level. Pre-cast concrete panel walls, panel is the primary activity within the range
The walls will be designed for a walls, rough carpentry and roof framing, of construction activities that is likely to
minimum design life of 50 years and wall board, cable railing, metal flashing, affect marine mammals by potentially
will not be undermined from ongoing and roofing. exposing them to in-air (i.e., airborne or
coastal erosion. The walls will not be Equipment—crane, truck, fork lift, sub-aerial) noise. During the working
readily viewed from Coast Boulevard, and hand/power tools. day, the City of San Diego estimates
the public sidewalks or the surrounding Timeframe—Approximately 35 days. there will be sound source levels above
community. Enhanced paving, seating This phase will be completed in 2015 90 dB re 20 mPa, including 65 days of
and viewing space, drinking fountains, and has a maximum source level of 100 100 to 110 dB re 20 mPa at the
adapted landscaping, and water efficient dB. construction site.
irrigation will also be included. (6.) Building exterior: On average, pinnipeds will be about
The City of San Diego has divided the Doors and windows, siding paint, 30.5 meters (m) (100 feet [ft]) or more
demolition and construction activities light fixtures, and plumbing fixtures. from the construction site with a
are divided into phases: Equipment—truck, hand/power tools, potential minimum of about 15.2 m (50
(1.) Mobilization and temporary and chop saw. ft). During 2013 and 2014, measured
facilities; Timeframe—Approximately 4 weeks. sound levels from the demolition
(2.) Demolition and site clearing; This phase will be completed in 2015 equipment reaching the pinnipeds did
(3.) Site preparation and utilities; and has a maximum source level of 100 not exceed approximately 90 dB re 20
dB. mPa at the haul-out area closest to the
(4.) Building foundation;
(7.) Building interiors: demolition and construction and a peak
(5.) Building shell;
Walls, sewage lift station, rough and of about 83 dB re 20 mPa at the mean
(6.) Building exterior;
finish mechanical electrical plumbing hauling-out distance (30.5 m). The City
(7.) Building interior; of San Diego used the formula and
structural (MEPS), wall board, door
(8.) Site improvements; and online calculator on the Web site: http://
frames, doors and paint.
(9.) Final inspection and Equipment—truck, hand/power tools, sengpielaudio.com/calculator-
demobilization. and chop saw. distance.htm and measured distances
Demolition and construction of the Timeframe—Approximately 37 days. from the sound source to determine the
new lifeguard station was initially This phase will be completed in 2015 area of potential impacts from in-air
estimated to take approximately 7 and has a maximum source level of 100 sound. Table 1 of the City of San Diego’s
months (148 actual demolition and dB. monitoring report provides mean sound
construction days) and be completed by (8.) Site improvements: and mean distance from sound sources
December 15, 2013; however, Modify storm drain, concrete seat by the type of equipment and
demolition and construction did not walls, curbs, and planters, fine grade, monitoring location. The City of San
start until later than previously planned irrigation, hardscape, landscape, hand Diego intends to continue to measure in-
in June 2013 and June 2014 due to the rails, plaques, and benches. air background noise levels in the days
presence of nesting migratory birds (i.e., Equipment—backhoe, truck, hand/ immediately prior to, during, and after
Western seagulls [Larus occidentalis] power tools, concrete pump/truck, and the construction activities.
and eggs/chicks). There were additional fork lift. Additional details regarding the
unexpected delays in the demolition Timeframe—Approximately 37 days. construction activities of the Children’s
due to unforeseen underground This phase will be completed in 2015 Pool Lifeguard Station can be found in
structures at the site making it and has a maximum source level of 110 the City of San Diego’s IHA application.
impossible to finish the project by dB. The IHA application can also be found
December 15, 2013 or 2014. The City of (9.) Final inspection and online at: http://www.nmfs.noaa.gov/pr/
San Diego completed phases 1 to 4 demobilization: permits/incidental/construction.htm.
during 2013 and 2014. During the 2013 System testing, remove construction
to 2014 construction window, the Comments and Responses
equipment, inspection, and corrections.
temporary on-site tower was removed Equipment—truck, and hand/power A notice of preliminary
and two temporary towers were tools. determinations and proposed IHA for
installed nearby (one about 500 m Timeframe—Approximately 41 days. the City of San Diego’s construction
asabaliauskas on DSK5VPTVN1PROD with NOTICES
[1,640.4 ft] south of the construction site This phase will be completed in 2015 activities as published in the Federal
and another about 1,000 m [3,280.8 ft] and has a maximum source level of 100 Register on May 19, 2015 (80 FR 28588).
east of the construction site to serve dB. During the 30-day public comment
citizens utilizing the beaches and ocean The exact dates of the planned period, NMFS received comments from
waters nearby. Construction of phases 5 activities depend on logistics and the Marine Mammal Commission
to 9 will commence in June 2015, scheduling. (Commission) and one private citizen.
thereby necessitating a renewal of the Sound levels during all phases of the The comments are posted online at:
previous IHA. project will not exceed 110 dB re 20 mPa http://www.nmfs.noaa.gov/pr/permits/
VerDate Sep<11>2014 22:06 Jul 10, 2015 Jkt 235001 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\13JYN1.SGM 13JYN1](https://thefederalregister.org/doc/80_FR_40132/page/3.svg)
![Federal Register / Vol. 80, No. 133 / Monday, July 13, 2015 / Notices 40003
TABLE 1—THE HABITAT, OCCURRENCE, RANGE, ABUNDANCE, AND CONSERVATION STATUS OF MARINE MAMMALS INHAB-
ITING THE GENERAL REGION OF THE ACTION AREA IN THE PACIFIC OCEAN OFF THE SOUTHERN COAST OF CALI-
FORNIA—Continued
Best population
Species Habitat Occurrence Range estimate ESA 2 MMPA 3
(minimum) 1
California sea lion Coastal, shelf Common ........ Eastern North Pacific 296,750 (153,337)— NL ................ NC.
(Zalophus Ocean—Alaska to U.S. stock.
californianus). Mexico.
Steller sea lion Coastal, shelf Rare ............... North Pacific Ocean— 72,223 (52,847)— DL—Eastern D.
(Eumetopias jubatus). Central California to Eastern U.S. stock. U.S. stock.
Korea. EN—Western
U.S. stock.
Northern fur seal Pelagic, off- Rare ............... North Pacific Ocean— 12,844 (6,722)—Cali- NL ................ NC—Cali-
(Callorhinus ursinus). shore. Mexico to Japan. fornia stock. fornia
stock.
Guadalupe fur seal Coastal, shelf Rare ............... California to Baja Cali- 7,408 (3,028)—Mexico T .................. D.
(Arctocephalus fornia, Mexico. to California.
townsendi).
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 California, Mexico, to the Pribilof 2008). Preferred haul-out sites are those
Children’s Pool in La Jolla, CA, are Islands in Alaska. These seals do not that are protected from the wind and
almost exclusively Pacific harbor seal make extensive pelagic migrations, but waves, and allow access to deep water
hauling-out sites. On infrequent do travel 300 to 500 kilometers (km) for foraging (Perrin et al., 2008). Of the
occasions, one or two California sea (162 to 270 nautical miles [nmi]) on known haul-out sites, 14 locations are
lions or a single juvenile northern occasion to find food or suitable rookeries (2 locations have multiple
elephant seal have been observed on the breeding areas (Herder, 1986; Harvey sites, for a total of 17 sites) on or near
sand or rocks at or near the Children’s and Goley, 2011). Previous assessments the mainland of California. The
Pool (i.e., breakwater ledge/rocks haul- of the status of harbor seals have population of harbor seals has grown off
out area, reef haul-out area, and Casa recognized three stocks along the west the U.S. west coast and has led to new
Beach haul-out area). These sites are not coast of the continental U.S.: (1) haul-out sites being used in California
usual haul-out locations for California California, (2) Oregon and Washington (Hanan, 1996). Harbor seals are one of
sea lions and/or northern elephant seals. outer coast waters, and (3) inland waters the most common and frequently
The City of San Diego commissioned of Washington. An unknown number of observed marine mammals along the
two studies of harbor seal abundance harbor seals also occur along the west coastal environment.
trends at the Children’s Pool. Both coast of Baja California, at least as far Harbor seals have been observed
studies reported that appearances of south as Isla Asuncion, which is about hauling-out and documented giving
California sea lions and northern 100 miles south of Punta Eugenia. birth at the Children’s Pool since the
elephant seals are infrequent, but not Animals along Baja California are not 1990’s (Yochem and Stewart, 1998;
rare at Children’s Pool (Yochem and considered to be a part of the California Hanan & Associates, 2004). Pacific
Stewart, 1998; Hanan, 2004; Hanan & stock because it is not known if there is harbor seals haul-out year-round on
Associates, 2011). During 2013, the City any demographically significant beaches and rocks (i.e., breakwater
of San Diego observed one juvenile and movement of harbor seals between ledge/rocks haul-out area, reef haul-out
three adult California sea lions and two California and Mexico and there is no area, and Casa Beach haul-out area)
juvenile northern elephant seals at the international agreement for joint below the lifeguard tower at Children’s
Children’s Pool. During 2014, the City of management of harbor seals. Harbor seal Pool. According to Yochem (2005), the
San Diego observed 22 California sea presence at haul-out sites is seasonal Children’s Pool beach site is used by
lions (during 19 days) and 30 juvenile with peaks in abundance during their harbor seals at all hours of the day and
elephant seals (during 29 days) at the pupping and molting periods. Pupping at all tides with the exception of
Children’s Pool. Adult sea lions were and molting periods are first observed to occasional high tide/high swell events
also observed hauling out on rocks and the south and progress northward up in which the entire beach is awash. It is
cliffs near the Children’s Pool. the coast with time (e.g., January to May one of the three known haul-out sites for
near San Diego, April to June in Oregon this species in San Diego County. These
Pacific Harbor Seal
and Washington) (Jeffries, 1984; Jeffries, animals have been observed in this area
Harbor seals are widely distributed in 1985; Huber et al., 2001; Hanan, 2004; moving to/from the Children’s Pool,
asabaliauskas on DSK5VPTVN1PROD with NOTICES
the North Atlantic and North Pacific. Hanan & Associates, 2011). exchanging with the rocky reef directly
Two subspecies exist in the Pacific In California, approximately 400 to west of and adjacent to the breakwater
Ocean: P. v. stejnegeri in the western 600 harbor seal haul-out sites are and with Seal Rock, which is about 150
North Pacific near Japan, and P. v. distributed along the mainland coast m (492 ft) west of the Children’s Pool.
richardii in the eastern North Pacific. and on offshore islands, including Harbor seals have also been reported on
The subspecies in the eastern North intertidal sandbars and ledges, rocky the sandy beach just southwest of the
Pacific Ocean inhabits near-shore shores and islets, and beaches (Harvey Children’s Pool. At low tide, additional
coastal and estuarine areas from Baja et al., 1995; Hanan, 1996; Lowry et al., space for hauling-out is available on the
VerDate Sep<11>2014 22:06 Jul 10, 2015 Jkt 235001 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\13JYN1.SGM 13JYN1](https://thefederalregister.org/doc/80_FR_40132/page/5.svg)
![40004 Federal Register / Vol. 80, No. 133 / Monday, July 13, 2015 / Notices
rocky reef areas outside the retaining except for weekends, over 250 2004. Based on monitoring during 2013
wall and on beaches immediately individual harbor seals were present on to 2014, Dr. Hanan estimates that
southward. Haul-out times vary by time the beach. During the months of similar numbers of harbor seals hauling-
of year, from less than an hour to many September 2012 to January 2013, the out at Children’s Pool during 2011 and
hours. There have been no foraging average number of harbor seals on the will expect similar numbers in 2015 to
studies at this site, but harbor seals have beach varied from 83 to 120 animals 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 Children’s Pool. For example, harbor California Sea Lion
amount of information is known about seals with red-stained heads and coats,
the movements and ecology of harbor which are typical of some harbor seals The California sea lion is a full
seals, but population structure in the in San Francisco Bay have been species, separate from the Galapagos sea
region is not as well known (Stewart observed at Children’s Pool, indicating lion (Zalophus wollebaeki) and the
and Yochem, 1994, 2000; Keper et al., that seals tagged at other locations and extinct Japanese sea lion (Zalophus
2005; Hanan & Associates, 2011). Linder haul-out sites visit the site. A few seals japonicus) (Brunner, 2003; Wolf et al.,
(2011) suggests that this population have been tagged at the Children’s Pool 2007; Schramm et al., 2009). This
moves along the California coast and the and there are no reports of these tagged species of sea lion is found from
beach at Children’s Pool is part of a animals at other sites (probably because southern Mexico to southwestern
‘‘regional network of interconnected’’ of very low re-sighting efforts and a Canada. The breeding areas of the
haul-out and pupping sites. Harbor seals small sample size [10 individuals radio- California sea lion are on islands located
often haul-out in protected bays, inlets, tagged]), which may indicate a degree of in southern California, western Baja
and beaches (Reeves et al., 1992). At and site-fidelity (Yochem and Stewart, California, and the Gulf of California. A
near the Children’s Pool, harbor seals 1998). These studies further indicate genetic analysis of California sea lions
haul-out on the sand, rocks, and that seals are constantly moving along identified five genetically distinct
breakwater base in numbers of 0 to 15 the coast including to/from the offshore geographic populations: (1) Pacific
harbor seals to a maximum of about 150 islands and that there may be as many Temperate, (2) Pacific Subtropical, (3)
to 250 harbor seals depending on the as 600 individual harbor seals using Southern Gulf of California, (4) Central
time of day, season, and weather Children’s Pool during a year, but Gulf of California, and (5) Northern Gulf
conditions (Hanan, 2004, Hanan & certainly not all at one time. of California (Schramm et al., 2009). In
Associates, 2011; Linder, 2011). Because The City of San Diego has fitted a that study, the Pacific Temperate
space is limited behind the breakwater polynomial curve to the number of population included rookeries within
at the Children’s Pool, Linder (2011) expected harbor seals hauling-out at the U.S. waters and the Coronados Islands
predicted that it is unlikely that Children’s Pool by month (see Figure 1 just south of U.S./Mexico border.
numbers will exceed 250 harbor seals. of the IHA application and Figure 2 Animals from the Pacific Temperate
Based on monitoring from a camera, below) based on counts at the Children’s population range north into Canadian
asabaliauskas on DSK5VPTVN1PROD with NOTICES
Western Alliance for Nature (WAN) Pool by Hanan (2004), Hanan & waters, and movement of animals
reported that during the month of May Associates (2011), Yochem and Stewart between U.S. waters and Baja California
2013 up to 302 harbor seals were (1998), and the Children’s Pool docents waters has been documented, though
documented resting on the Children’s (Hanan, 2004). A three percent annual the distance between the major U.S. and
Pool beach at any given time, with growth rate of the population was Baja California rookeries is at least 740.8
additional harbor seals on the rocks and applied to Yochem and Stewart (1998) km (400 nmi). Males from western Baja
in the water (Wan, personal counts to normalize them to Hanan & California rookeries may spend most of
communication). Almost every day, Associates and docent counts in 2003 to the year in the United States.
VerDate Sep<11>2014 22:06 Jul 10, 2015 Jkt 235001 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 E:\FR\FM\13JYN1.SGM 13JYN1](https://thefederalregister.org/doc/80_FR_40132/page/6.svg)
![Federal Register / Vol. 80, No. 133 / Monday, July 13, 2015 / Notices 40005
The entire California sea lion A complete population count of carried out or the mitigation that will be
population cannot be counted because elephant seals is not possible because implemented, or how either of those
all age and sex classes are never ashore all age classes are not ashore will shape the anticipated impacts from
at the same time. In lieu of counting all simultaneously. Elephant seal this specific activity. The ‘‘Estimated
sea lions, pups are counted during the population size is typically estimated by Take by Incidental Harassment’’ section
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 ‘‘Mitigation’’
past two years births have been reported elephant seals. This multiplier is section, and the ‘‘Anticipated Effects on
at La Jolla Cove (about 0.75 km [0.47 derived from life tables based on Marine Mammal Habitat’’ section to
miles] east of Children’s Pool). published elephant seal fecundity and draw conclusions regarding the likely
Population estimates for the U.S. stock survival rates, and reflects a population impacts of this activity on the
of California sea lions range from a with approximately 23% pups (Cooper reproductive success or survivorship of
minimum of 153,337 to an average and Stewart, 1983; Le Boeuf and Reiter, individuals and from that on the
estimate of 296,750 animals. They are 1988; Hindell 1991; Huber et al., 1991; affected marine mammal populations or
considered to be at carrying capacity of Reiter and Le Boeuf, 1991; Clinton and 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
can be estimated very conservatively as frequencies of sound. Based on available
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
foraging areas between males and for marine mammals and estimate the
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
(Le Beouf et al., 2000). Males migrate to functional hearing of the groups. The
stock under the MMPA. functional groups and the associated
the Gulf of Alaska and western Aleutian Further information on the biology
Islands along the continental shelf to frequencies are indicated below (though
and local distribution of these marine
feed on benthic prey, while females animals are less sensitive to sounds at
mammal species and others in the
migrate to pelagic areas in the Gulf of the outer edge of their functional range
region can be found in the City of San
Alaska and the central North Pacific to and most sensitive to sounds of
Diego’s IHA application, which is
feed on pelagic prey (Le Beouf et al., frequencies within a smaller range
available upon request (see ADDRESSES),
2000). Adults return to land between somewhere in the middle of their
and the NMFS Marine Mammal Stock
March and August to molt, with males Assessment Reports, which are available functional hearing range):
returning later than females. Adults online at: http://www.nmfs.noaa.gov/pr/ • Low-frequency cetaceans (13
return to their feeding areas again sars/. species of mysticetes): functional
between their spring/summer molting hearing is estimated to occur between
and their winter breeding seasons. Potential Effects of the Specified approximately 7 Hz and 30 kHz;
Populations of northern elephant Activity on Marine Mammals • Mid-frequency cetaceans (32
seals in the U.S. and Mexico have This section includes a summary and species of dolphins, six species of larger
recovered after being nearly hunted to discussion of the ways that the types of toothed whales, and 19 species of
extinction (Stewart et al., 1994). stressors associated with the planned beaked and bottlenose whales):
Northern elephant seals underwent a specified activity (e.g., construction functional hearing is estimated to occur
severe population bottleneck and loss of equipment and activities) have been between approximately 150 Hz and 160
genetic diversity when the population observed to impact marine mammals. kHz;
was reduced to an estimated 10 to 30 This discussion may also include • High-frequency cetaceans (eight
individuals (Hoelzel et al., 2002). reactions that we consider to rise to the species of true porpoises, six species of
However, movement and genetic level of a take and those that we do not river dolphins, Kogia spp., the
exchange continues between rookeries consider to rise to the level of take (for franciscana (Pontoporia blainvillei), and
asabaliauskas on DSK5VPTVN1PROD with NOTICES
when they start breeding (Huber et al., example, with acoustics), we may four species of cephalorhynchids):
1991). The California breeding include a discussion of studies that functional hearing is estimated to occur
population is now demographically showed animals not reacting at all to between approximately 200 Hz and 180
isolated from the Baja California sound or exhibiting barely measureable kHz; and
population. The California breeding avoidance). This section is intended as • Phocid pinnipeds in water:
population is considered in NMFS’s a background of potential effects and functional hearing is estimated to occur
stock assessment report to be a separate does not consider either the specific between approximately 75 Hz and 100
stock. manner in which this activity will be kHz;
VerDate Sep<11>2014 22:06 Jul 10, 2015 Jkt 235001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\13JYN1.SGM 13JYN1](https://thefederalregister.org/doc/80_FR_40132/page/7.svg)
![Federal Register / Vol. 80, No. 133 / Monday, July 13, 2015 / Notices 40007
to dampen the acoustic sound sources, calculated to minimize potential around the construction activities so
but do not prevent sound from impacts on marine mammals, including: that in-air sounds associated with the
permeating the environment. The construction activities no longer exceed
Prohibition of Construction During
barriers also appear to hide and reduce levels that are potentially harmful to
Pupping Season
visual cues that may stimulate marine mammals.
behavioral reactions from the pinnipeds Construction shall be prohibited
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 To minimize in-air noise impacts on
and on flat areas above the cliff, a for an additional two weeks thereafter to marine mammals, construction
complete barrier cannot be constructed accommodate lactation and weaning of activities shall be limited to the period
to hide all construction activities for the late season pups. Thus, construction when the species of concern will be
project. Once the walls of the lifeguard shall be prohibited from December 15th least likely to be in the project area. The
station’s building are in place, much of to June 1st. construction window for construction
the construction activities will take activities shall be from June 1 to
Daily Construction Timing
place above the Children’s Pool beach December 15, 2015. The IHA may
(i.e., out of sight) as well as inside the Construction activities shall be extend to June 1 through June 27, 2016
building (i.e., a visual and partial sound scheduled, to the maximum extent to finish the construction activities if
barrier). There will be no activities in practicable, during the daily period of needed. Avoiding periods when the
the ocean or closer to the water’s edge lowest haul-out occurrence, from highest number of marine mammal
and since harbor seals mate underwater approximately 8:30 a.m. to 3:30 p.m. individuals are in the action area is
in the ocean, there will be no impacts However, construction activities may be another mitigation measure to protect
on mating activities. California sea lions extended from 7 a.m. to 7 p.m. to help marine mammals from the construction
and northern elephant seals are such assure that the project can be completed activities.
infrequent users of this area and their during the 2015 construction window.
rookeries are so far away (at least 104.6 Harbor seals typically have the highest Potential Abandonment Survey
km [65 miles] at offshore islands) that daily or hourly haul-out period during
After the first two months of
there will be no adverse impact on these the afternoon from 3 p.m. to 6 p.m.
monitoring during construction
species. Construction of Visual and Acoustic activities, the City of San Diego will take
As part of the public comment
Barriers the mean number of observed harbor
process for the issuance of the previous
2013 IHA, NMFS modified several of A visual and acoustic barrier will be seals at the Children’s Pool in a 24-hour
the monitoring and mitigation measures erected and maintained for the duration period across that two months and
included in the proposed IHA (78 FR of the project to shield construction compare it to the mean of the lower 95
25958, May 3, 2013) for practicability activities from beach view. The percent confidence interval in Figure 1
reasons, and also included several temporary barrier shall consist of 1/2 to (see below). If the observed mean is
additional measures in the final IHA (78 3/4 inch (1.3 to 1.9 centimeters [cm]) lower, the City of San Diego will shut-
FR 40705, July 8, 2013). These included plywood constructed 1.8 to 2.4 m (6 to down construction activities and work
changing the pupping season from 8 ft) high depending on the location. with NMFS and other harbor seal
December 15th to May 15th and The City of San Diego does not believe experts (e.g., Mark Lowry, Dr. Sarah
prohibiting construction activities that a complete barrier can be Allen, Dr. Pamela Yochem, and/or Dr.
during this time; extending construction constructed to hide all of the Brent Stewart) to develop and
activities from 7:00 a.m. to 7:00 p.m. to construction activities. Once the walls implement a revised mitigation plan to
help assure that more work will be of the lifeguard station building are in further reduce the number of takes and
completed during the 2013 construction place, much of the construction potential impacts. Once a week every
window; continuing monitoring for 60 activities will take place on the bluff week thereafter, the City of San Diego
days following the end of construction above the beach (thus out of sight) and will take the same mean of observed
activities; and triggering a shut-down of inside the building, which will provide harbor seals across the previous three
construction activities in the a visual and partial sound barrier. tide cycles (a tide cycle is
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 will be used to detect, Figure 1 for the same time period. If the
construction activities (with the highest document, and minimize impacts (i.e., observed mean is lower, the City of San
sound levels) during the annual period possible shut-down of noise-generating Diego will shut-down and take the
of lowest haul-out occurrence (October operations [turning off the equipment so action described above. If abandonment
to November) was originally included in that in-air sounds associated with of the site is likely, monitoring will be
the City of San Diego’s Mitigated construction no longer exceed levels expanded away from the Children’s
Negative Declaration when it was that are potentially harmful to marine Pool to determine if animals have been
anticipated that the City of San Diego mammals]) to marine mammals. More temporarily displaced to known haul-
would obtain an IHA in the summer of information about this measure is out sites in the southern California area
2012 and begin demolition and contained in the ‘‘Monitoring’’ section (e.g., north end of Torrey Pines, cave on
the exposed ocean side of Point Loma,
asabaliauskas on DSK5VPTVN1PROD with NOTICES
construction activities in the fall of (below).
2012. This requirement has been etc.). For the purpose of this action,
Establishment of Buffer Zones NMFS will consider the Children’s Pool
removed because it is no longer
practicable due to logistics, scheduling The City of San Diego shall establish site to possibly be abandoned if zero
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 planned 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
VerDate Sep<11>2014 22:06 Jul 10, 2015 Jkt 235001 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\13JYN1.SGM 13JYN1](https://thefederalregister.org/doc/80_FR_40132/page/9.svg)
![40010 Federal Register / Vol. 80, No. 133 / Monday, July 13, 2015 / Notices
(3) The PSO shall search for marine • Time of observer departure from harassment), serious injury, or
mammals within the Children’s Pool site. mortality, the City of San Diego shall
area. All monitoring data collected during immediately cease the specified
(4) The PSO shall be present during construction would be included in the activities and immediately report the
construction activities to observe for the biological monitoring notes to be incident to the Chief of the Permits and
presence of marine mammals in the submitted. A final report summarizing Conservation Division, Office of
vicinity of the specified activity. All the construction monitoring and any Protected Resources, NMFS, at 301–
such activity would occur during general trends observed will also be 427–8401 and/or by email to
daylight hours (i.e., 30 minutes after submitted to NMFS within 90 days after Jolie.Harrison@noaa.gov,
sunrise and 30 minutes before sunset). monitoring has ended during the period Howard.Goldstein@noaa.gov, and the
If inclement weather limits visibility of the lifeguard station construction. West Coast Regional Stranding
within the area of effect, the PSO would Reporting Coordinator (562–980–3230). The report
perform visual scans to the extent must include the following information:
conditions allow. The City of San Diego will notify • Time, date, and location (latitude/
(5) If marine mammals are sighted by NMFS Headquarters and the NMFS longitude) of the incident;
the PSO within the acoustic threshold Southwest Regional Office prior to • The type of activity involved;
initiation of the construction activities.
areas, the PSO shall record the number • Description of the circumstances
of marine mammals within the area of A draft final report must be submitted
during and leading up to the incident;
effect and the duration of their presence to NMFS within 90 days after the
• Status of all sound source use in the
while the noise-generating activity is conclusion of the construction activities
of the Children’s Pool Lifeguard Station. 24 hours preceding the incident; water
occurring. The PSO would also note depth; environmental conditions (e.g.,
whether the marine mammals appeared The report would include a summary of
the information gathered pursuant to the wind speed and direction, Beaufort sea
to respond to the noise and, if so, the state, cloud cover, and visibility);
nature of that response. The PSO shall monitoring requirements set forth in the
IHA, including dates and times of • Description of marine mammal
record the following information: date observations in the 24 hours preceding
and time of initial sighting, tidal stage, operations and all marine mammal
sightings (dates, times, locations, the incident; species identification or
weather conditions, Beaufort sea state, description of the animal(s) involved;
species, behavior (activity, group species, behavioral observations
[activity, group cohesiveness, direction • The fate of the animal(s); and
cohesiveness, direction and speed of photographs or video footage of the
travel, etc.), number, group and speed of travel, etc.], tidal stage,
weather conditions, Beaufort sea state animal (if equipment is available).
composition, distance to sound source, Activities shall not resume until
number of animals impacted, and wind force, associated construction
activities). A final report must be NMFS is able to review the
construction activities occurring at time circumstances of the prohibited take.
of sighting, and monitoring and submitted to the Regional Administrator
within 30 days after receiving comments NMFS shall work with the City of San
mitigation measures implemented (or Diego to determine the action necessary
not implemented). The observations from NMFS on the draft final report. If
no comments are received from NMFS, to minimize the likelihood of further
would be reported to NMFS. prohibited take and ensure MMPA
(6) A final report will be submitted the draft final report would be
considered to be the final report. compliance. The City of San Diego may
summarizing all in-air acoustic effects not resume its activities until notified
from construction activities and marine While the IHA does not authorize
injury (i.e., Level A harassment), serious by NMFS via letter, email, or telephone.
mammal monitoring during the time of Reporting an Injured or Dead Marine
the authorization, and any long term injury, or mortality, should the
applicant, contractor, monitor or any Mammal With an Unknown Cause of
impacts from the project. Death—In the event that the City of San
A written log of dates and times of other individual associated with the
construction project observe an injured Diego discovers an injured or dead
monitoring activity will be kept. The log
or dead marine mammal, the incident marine mammal, and the lead PSO
shall report the following information:
• Time of observer arrival on site; (regardless of cause) will be reported to determines that the cause of the injury
• Time of the commencement of in- NMFS as soon as practicable. The report or death is unknown and the death is
air noise generating activities, and should include species or description of relatively recent (i.e., in less than a
description of the activities; animal, condition of animal, location, moderate state of decomposition as
• Distances to all marine mammals time first found, observed behaviors (if described in the next paragraph), the
relative to the sound source; alive) and photo or video, if available. City of San Diego will immediately
• Distances from the sound meter to In the unanticipated event that the report the incident to the Chief of the
each sound-producing activity when City of San Diego discovers a live Permits and Conservation Division,
conducting sound measurements; stranded marine mammal (sick and/or Office of Protected Resources, NMFS, at
• For harbor seal observations, notes injured) at Children’s Pool, they shall 301–427–8401, and/or by email to
on seal behavior during noise-generating immediately contact Sea World’s Jolie.Harrison@noaa.gov,
activity, as described above, and on the stranded animal hotline at 1–800–541– Howard.Goldstein@noaa.gov, and the
number and distribution of seals 7235. Sea World shall also be notified NMFS West Coast Regional Office (1–
observed in the project vicinity; if a dead stranded pinniped is found so 866–767–6114), and/or to the West
• For observations of all marine that a necropsy can be performed. In all Coast Regional Stranding Coordinator
asabaliauskas on DSK5VPTVN1PROD with NOTICES
mammals other than harbor seals, the cases, NMFS shall be notified as well, (562–980–3230). The report must
time and duration of each animal’s but for immediate response purposes, include the same information identified
presence in the project vicinity; the Sea World shall be contacted first. above. Activities may continue while
number of animals observed; the Reporting Prohibited Take—In the NMFS reviews the circumstances of the
behavior of each animal, including any unanticipated event that the specified incident. NMFS will work with the City
response to noise-generating activities; activity clearly causes the take of a of San Diego to determine whether
• Time of the cessation of in-air noise marine mammal in a manner prohibited modification of the activities is
generating activities; and by this IHA, such as an injury (Level A appropriate.
VerDate Sep<11>2014 22:06 Jul 10, 2015 Jkt 235001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\13JYN1.SGM 13JYN1](https://thefederalregister.org/doc/80_FR_40132/page/12.svg)
![Federal Register / Vol. 80, No. 133 / Monday, July 13, 2015 / Notices 40015
there is a high likelihood that many of hauling-out at Children’s Pool during construction activities during harbor
the harbor seals present during the the year for many years (including seal pupping season. No injury, serious
construction activities would not be during pupping season and while injury, or mortality is expected to occur
flushed off of the beach or rocks, as females are pregnant) while being and due to the nature, degree, and
pinnipeds at this site are conditioned to exposed to anthropogenic sound sources context of the Level B harassment
human presence and loud noises such as vehicle traffic, human voices, anticipated, the activity is not expected
(Hanan, 2004; Hanan & Associates, etc. and other stimuli from human to impact rates of recruitment or
2011) (see http://www.youtube.com/ presence. While studies have shown the survival.
watch?v=4IRUYVTULsg). types of sound sources used during the Although behavioral modifications,
As discussed in detail above, the construction activities have the including temporarily vacating the area
project scheduling avoids sensitive life potential to displace marine mammals during the construction activities, may
stages for Pacific harbor seals. from breeding areas for a prolonged be made by these species to avoid the
Construction activities producing in-air period (e.g., Lusseau and Bejder, 2007; resultant acoustic disturbance, the
noise will commence in June and end Weilgart, 2007), based on the best availability of alternate areas within
by December 15. The commencement available information, this does not these areas for species and the short and
date occurs after the end of the pupping seem to be the case for the Pacific sporadic duration of the activities, have
season, affords additional time to harbor seals at the Children’s Pool. The led NMFS to determine that the taking
accommodate lactation and weaning of Pacific harbor seals have repeatedly by Level B harassment from the
season pups, and takes into account hauled-out to pup over many years and specified activity would have a
periods of lowest haul-out occurrence. the NMFS Stock Assessment Reports negligible impact on the affected species
The end date falls approximately two (NMFS, 2011) for this stock have shown in the specified geographic region.
weeks prior to January 1, the time after that the population is increasing and is NMFS believes that the time period of
which most births occur, providing considered stable. Additionally, the the construction activities, the
protection for pregnant and nursing construction activities would increase requirement to implement mitigation
harbor seals that may give birth before sound levels in the environment in a measures (e.g., prohibiting construction
January 1. relatively small area surrounding the activities during pupping season,
Table 3 of this document outlines the lifeguard station (compared to the range scheduling operations to periods of the
number of Level B harassment takes that of the animals), and some animals may lowest haul-out occurrence, visual and
are anticipated as a result of these only be exposed to and harassed by acoustic barriers, and the addition of a
activities. Due to the nature, degree, and sound for less than a day. new measure that helps protect against
context of Level B (behavioral) NMFS’s practice has been to apply the unexpected abandonment of the site),
harassment anticipated and described 90 dB re 20 mPa and 100 dB re 20 mPa and the inclusion of the monitoring and
(see ‘‘Potential Effects on Marine received level threshold for in-air sound reporting measures, will reduce the
Mammals’’ section above) in this notice, levels to determine whether take by amount and severity of the potential
this activity is not expected to impact Level B harassment occurs. Southall et impacts from the activity to the degree
rates of annual recruitment or survival al. (2007) provide a severity scale for that will have a negligible impact on the
for the affected species or stock (i.e., ranking observed behavioral responses species or stocks in the action area.
California stock of Pacific harbor seals, of both free-ranging marine mammals Based on the analysis contained
U.S. stock of California sea lions, and and laboratory subjects to various types herein of the likely effects of the
California breeding stock of northern of anthropogenic sound (see Table 4 in specified activity on marine mammals
elephant seals), particularly given the Southall et al. [2007]). NMFS has not and their habitat, and taking into
required mitigation, monitoring, and established a threshold for Level A consideration the implementation of the
reporting measures that would be harassment (injury) for marine monitoring and mitigation measures,
implemented to minimize impacts to mammals exposed to in-air noise, NMFS finds that the total marine
marine mammals. however, Southall et al. (2007) mammal take from the City of San
The Children’s Pool is one of the three recommends 149 dB re 20 mPa (peak Diego’s activities will have a negligible
known haul-out sites for Pacific harbor flat) as the potential threshold for injury impact on the affected marine mammal
seal in San Diego County and the only from in-air noise for all pinnipeds. No species or stocks.
rookery in San Diego County and the in-air sounds from construction
only mainland rookery on the U.S. west Small Numbers
activities would exceed 110 dB at the
coast for this species between the border source and no measured sounds As mentioned previously, NMFS
of Mexico and Point Mugu in Ventura approached that sound level in 2013. estimates that 3 species of marine
County, CA. For the other marine Of the 3 marine mammal species mammals under its jurisdiction could be
mammal species that may occur within under NMFS jurisdiction that may or potentially affected by Level B
the action area (i.e., California sea lions are known to likely occur in the action harassment over the course of the IHA.
and northern elephant seals), there are area, none are listed as threatened or NMFS makes its small numbers
no known designated or important endangered under the ESA. No determination based on the numbers or
feeding and/or reproductive areas. Many incidental take has been requested to be proportion of marine mammals that will
animals perform vital functions, such as authorized for ESA-listed species as be taken relative to the populations of
feeding, resting, traveling, and none are expected to be within the the affected species or stocks. It is
socializing, on a diel cycle (i.e., 24 hour action area. To protect these animals estimated that up to 600 individual
asabaliauskas on DSK5VPTVN1PROD with NOTICES
cycle). Behavioral reactions to noise (and other marine mammals in the Pacific harbor seals, 2 individual
exposure (such as disruption of critical action area), the City of San Diego shall California sea lions, and 1 northern
life functions, displacement, or schedule construction activities with elephant seal would be taken (multiple
avoidance of important habitat) are highest sound levels during the daily times) by Level B harassment, which
more likely to be significant if they last period of lowest haul-out occurrence; would be approximately 1.93, less than
more than one diel cycle or recur on limit activities to the hours of daylight; 0.01, and less than 0.01% of the
subsequent days (Southall et al., 2007). erect a temporary visual and acoustic respective California, U.S., and
However, Pacific harbor seals have been barrier; use PSOs and prohibit California breeding stocks. The
VerDate Sep<11>2014 19:27 Jul 10, 2015 Jkt 235001 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\13JYN1.SGM 13JYN1](https://thefederalregister.org/doc/80_FR_40132/page/17.svg)
![40016 Federal Register / Vol. 80, No. 133 / Monday, July 13, 2015 / Notices
population estimates for the marine described in the 2013 EA. NMFS has in this document, NMFS’
mammal species that may be taken by reviewed CEQ’s regulations and has Environmental Assessment (EA) and
Level B harassment were provided in determined that it is not necessary to Finding of No Significant Impact
Table 2 of this document. supplement the 2013 EA because the (FONSI), and the IHA may be obtained
NMFS has determined, provided that effects of this IHA fall within the scope by writing to the address specified
the aforementioned mitigation and of those documents and do not require above, telephoning the contact listed
monitoring measures are implemented, further supplementation. Based on the below (see FOR FURTHER INFORMATION
that the impact of the construction public comments received in response CONTACT), or visiting the Internet at:
activities at the Children’s Pool to the publication in the Federal http://www.nmfs.noaa.gov/pr/permits/
Lifeguard Station in La Jolla, CA, June Register notice and proposed IHA, incidental.htm#applications.
2015 to June 2016, may result, at worst, NMFS has reaffirmed its FONSI. Documents cited in this notice may be
in a temporary modification in behavior viewed, by appointment, during regular
and/or low-level physiological effects Authorization
business hours, at the aforementioned
(Level B harassment) of small numbers NMFS has issued an IHA to the City address.
of certain species of marine mammals. of San Diego for construction activities
Based on the analysis contained herein at the Children’s Pool Lifeguard Station FOR FURTHER INFORMATION CONTACT:
of the likely effects of the specified at La Jolla, CA, incorporating the Shane Guan, Office of Protected
activity on marine mammals and their previously mentioned mitigation, Resources, NMFS, (301) 427–8401.
habitat, and taking into consideration monitoring, and reporting requirements. SUPPLEMENTARY INFORMATION:
the implementation of the mitigation Dated: June 30, 2015.
and monitoring measures, NMFS finds Background
Perry F. Gayaldo,
that small numbers of marine mammals Sections 101(a)(5)(A) and (D) of the
will be taken relative to the populations Deputy Director, Office of Protected
Resources, National Marine Fisheries Service. MMPA (16 U.S.C. 1361 et seq.) direct
of the affected species or stocks. See the Secretary of Commerce to allow,
Table 2 for the authorized take numbers [FR Doc. 2015–16965 Filed 7–10–15; 8:45 am]
upon request, the incidental, but not
of marine mammals. BILLING CODE 3510–22–P
intentional, taking of small numbers of
Endangered Species Act marine mammals by U.S. citizens who
DEPARTMENT OF COMMERCE engage in a specified activity (other than
NMFS (Permits and Conservation
commercial fishing) within a specified
Division) has determined that an ESA
National Oceanic and Atmospheric geographical region if certain findings
section 7 consultation for the issuance
Administration are made and either regulations are
of an IHA under section 101(a)(5)(D) of
issued or, if the taking is limited to
the MMPA for this activity is not RIN 0648–XD782
harassment, a notice of a proposed
necessary for any ESA-listed marine
mammal species under its jurisdiction, Takes of Marine Mammals Incidental to authorization is provided to the public
as the planned action will not affect Specified Activities; Taking Marine for review.
ESA-listed species. Mammals Incidental to Marine Seismic An authorization for incidental
Survey in the Beaufort Sea, Alaska takings shall be granted if NMFS finds
National Environmental Policy Act that the taking will have a negligible
To meet NMFS’s National AGENCY: National Marine Fisheries impact on the species or stock(s), will
Environmental Policy Act (NEPA; 42 Service (NMFS), National Oceanic and not have an unmitigable adverse impact
U.S.C. 4321 et seq.) requirements for the Atmospheric Administration (NOAA), on the availability of the species or
issuance of an IHA to the City of San Commerce. stock(s) for subsistence uses (where
Diego, NMFS prepared an ACTION: Notice; issuance of an incidental relevant), and if the permissible
Environmental Assessment (EA) in 2013 take authorization. methods of taking and requirements
for a similar activity titled pertaining to the mitigation, monitoring
Environmental Assessment on the SUMMARY: In accordance with the and reporting of such takings are set
Issuance of an Incidental Harassment Marine Mammal Protection Act forth. NMFS has defined ‘‘negligible
Authorization to the City of San Diego (MMPA) regulations, notification is impact’’ in 50 CFR 216.103 as ‘‘an
to Take Marine Mammals by hereby given that NMFS has issued an impact resulting from the specified
Harassment Incidental to Demolition Incidental Harassment Authorization activity that cannot be reasonably
and Construction Activities at the (IHA) to SAExploration, Inc. (SAE) to expected to, and is not reasonably likely
Children’s Pool Lifeguard Station in La take, by harassment, small numbers of to, adversely affect the species or stock
Jolla, California to comply with the marine mammals incidental to a marine through effects on annual rates of
Council of Environmental Quality (CEQ) 3-dimensional (3D) ocean bottom node recruitment or survival.’’
regulations and NOAA Administrative (OBN) seismic survey program in the Except with respect to certain
Order (NAO) 216–6. NMFS prepared Beaufort Sea, Alaska, during the 2015 activities not pertinent here, the MMPA
and signed a Finding of No Significant Arctic open-water season. defines ‘‘harassment’’ as: Any act of
Impact (FONSI) determining that DATES: Effective July 1, 2015, through pursuit, torment, or annoyance which (i)
preparation of an Environmental Impact October 15, 2015. has the potential to injure a marine
Statement was not required. The FONSI ADDRESSES: Inquiry for information on mammal or marine mammal stock in the
asabaliauskas on DSK5VPTVN1PROD with NOTICES
was signed on June 28, 2013 prior to the the incidental take authorization should wild [Level A harassment]; or (ii) has
issuance of the IHA for the City of San be addressed to Jolie Harrison, Chief, the potential to disturb a marine
Diego’s construction activities from June Permits and Conservation Division, mammal or marine mammal stock in the
2013 to June 2014. The currently Office of Protected Resources, National wild by causing disruption of behavioral
planned construction activities that will Marine Fisheries Service, 1315 East patterns, including, but not limited to,
be covered by the IHA from June 2015 West Highway, Silver Spring, MD migration, breathing, nursing, breeding,
to June 2016 are similar to the 20910. A copy of the application feeding, or sheltering [Level B
demolition and construction activities containing a list of the references used harassment].
VerDate Sep<11>2014 19:27 Jul 10, 2015 Jkt 235001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\13JYN1.SGM 13JYN1](https://thefederalregister.org/doc/80_FR_40132/page/18.svg)
Document Created: 2018-02-23 09:17:35
Document Modified: 2018-02-23 09:17:35
| 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; issuance of an Incidental Harassment Authorization (IHA). | |
| Dates | Effective June 28, 2015 to June 27, 2016. | |
| Contact | Howard Goldstein or Jolie Harrison, Office of Protected Resources, NMFS, 301-427-8401. | |
| FR Citation | 80 FR 39999 | |
| RIN Number | 0648-XD80 |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR