[Federal Register Volume 69, Number 223 (Friday, November 19, 2004)]
[Notices]
[Pages 67706-67711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25741]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 081004A]


Incidental Take of Marine Mammals Incidental to Specified 
Activities; Taking of Harbor Seals Incidental to Wall Replacement and 
Bluff Improvement Projects at La Jolla, San Diego County, CA

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of issuance of an incidental harassment authorization.

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SUMMARY: In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that an Incidental 
Harassment Authorization (IHA) to take small numbers of marine mammals, 
by harassment, incidental to wall replacement and bluff improvement 
projects at La Jolla, California, has been issued to the City of San 
Diego.

DATES: Effective from September 20, 2004, through January 1, 2005.

ADDRESSES: The application, a list of references used in this document, 
and the IHA are available by writing to Stephen L. Leathery, Chief, 
Permits, Conservation and Education Division, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910-3225, or by telephoning the contact listed 
here.

FOR FURTHER INFORMATION CONTACT: Sarah Hagedorn, NMFS, (301) 713-2322 
or Monica DeAngelis, NMFS Southwest Region, (562) 980-3232.

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 marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if certain findings are 
made and regulations are issued.
    Permission may be granted if the Secretary finds that the total 
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, and that the permissible 
methods of taking and requirements pertaining to the monitoring and 
reporting of such taking 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.''
    Subsection 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. Except for certain categories of actions 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 May 27, 2004, NMFS received an application from the City of San 
Diego requesting an IHA for the possible

[[Page 67707]]

harassment of small numbers of Pacific harbor seals (Phoca vitulina) 
incidental to cove wall replacement and bluff improvement projects at 
La Jolla, CA. The purpose of this bluff improvement project is to 
protect public access along the coast and to maintain public rights-of-
way that have been adversely affected by coastal erosion, in a safe and 
publicly accessible condition. Bluff improvement measures address 
ongoing marine and subaerial erosion in six study sites, along with the 
removal of an aging wall above La Jolla Cove. Improvement measures are 
limited to remediation of only the upper portion of the bluff, allowing 
natural marine processes to continue unabated. Mitigation of marine 
erosion associated with splash and spray on the upper sloping portion 
of the coastal bluff will be limited to re-vegetation, primarily 
hydroseeding, and some limited container plants, along with a 
combination of both setting back and deepening the seaward edge of 
reconstructed sidewalks to provide some structural stiffness and 
increased stability, as both marine and sub-aerial processes continue 
to encroach upon bluff-top improvements. Key objectives of the site 
improvements are to protect lateral public access along the coast, 
increase public safety, minimize disturbance of the marine environment 
and its inhabitants, minimize disruption of public recreation and 
scenic vista opportunities, avoid disruption of public access to 
coastal areas, minimize visual impacts by re-vegetating manufactured 
slopes with native vegetation, avoid changes in runoff patterns, 
maintain pedestrian and vehicular travel around the construction sites, 
and avoid the use of rip rap. This activity does not include 
improvements to Children's Pool itself.

Measurement of Airborne Sound Levels

    The following section is provided to facilitate an understanding of 
airborne and impulsive noise characteristics. Amplitude is a measure of 
the pressure of a sound wave that is usually expressed on a logarithmic 
scale with units of sound level or intensity called the decibel (dB). 
Sound pressure level (SPL) is described in units of dB re micro-Pascal 
(micro-Pa, or microPa); for energy, the sound exposure level (SEL), a 
measure of the cumulative energy in a noise event, is described in 
terms of dB re micro-Pa\2\ -second; and frequency, often referred to as 
pitch, is described in units of cycles per second or Hertz (Hz). In 
other words, SEL is the squared instantaneous sound pressure over a 
specified time interval, where the sound pressure is averaged over 5 
percent to 95 percent of the duration of the sound.
    For airborne noise measurements the convention is to use 20 micro-
Pa as the reference pressure, which is 26 dB above the underwater sound 
pressure reference of 1 micro-Pa and is the approximate threshold of 
human hearing. However, the conversion from air to water intensities is 
more involved than this and is beyond the scope of this document. NMFS 
recommends interested readers review NOAA's tutorial on this issue: 
http://www.pmel.noaa.gov/vents/acoustics/tutorial/tutorial.html.
    Airborne sounds are also often expressed as broadband A-weighted 
(dBA) or C-weighted (dBC) sound levels. When frequency levels are made 
to correspond to human hearing, they are referred to as being A-
weighted or A-filtered. With A-weighting, sound energy at frequencies 
below 1 kHz and above 6 kHz are de-emphasized and approximates the 
human ear's response to sounds below 55 dB. C-weighting is often used 
in the analysis of high-amplitude noises like explosions, and 
corresponds to the relative response to the human ear to sound levels 
above 85 dB. C-weighting de-emphasizes ear frequency components of less 
than about 50 Hz. C-weight scaling is also useful for analyses of 
sounds having predominantly low-frequency sounds, such as sonic booms. 
For continuous noise like rocket launches, the important variables 
relevant to assessing auditory impacts or behavioral responses are 
intensity, frequency spectrum, and duration. In this document, whenever 
possible sound levels have been provided with A-weighting.

Project Description

    The Children's Pool area at La Jolla, including Children's Pool 
Beach and Seal Rock, is a year-round haulout and rookery for harbor 
seals. Four of the six construction sites are close to where harbor 
seals may be hauled out, and therefore may result in the incidental 
harassment of harbor seals. All construction activities will begin no 
earlier than the effective date of this IHA and will end no later than 
January 1, 2005. Construction can occur on any site on weekdays between 
the hours of 8:30 am and 3:30 pm except on national holidays. 
Demolition and construction may take place simultaneously at all four 
sites. The duration of construction at any one of these four sites will 
be limited to six working days total. Demolition of each site is 
scheduled to last one day. Equipment required for demolition will 
include hand tools, backhoes, power saws, and pavement breakers and/or 
jackhammers. No explosives will be used during demolition. The City of 
San Diego estimates that the maximum received sound exposure level 100 
ft (30.5 m) from demolition activities is approximately 90 dBA (re 20 
micro-Pa\2\ -sec). The equipment involved in these activities will 
include a concrete mixer, power auger, and hand tools. The maximum 
received sound exposure level at 100 ft (30.5 m) from construction 
activities is estimated to be about 81 dBA (re 20 micro-Pa\2\ -sec). 
The entire Cove Wall Replacement and Bluff Improvement Project is 
expected to take 6 weeks or less. Summaries of the proposed 
improvements at each of the 4 sites that have a potential to harass 
harbor seals follows.

Site 55D

    This site is located on the 700 block of Coast Boulevard, southeast 
of Children's Pool Beach. At this site, the existing post-and-board 
wall located on the slope will be removed. The area eroded by the 
abandoned storm drain will be filled with a reinforced geometric grid 
at a 1.5:1 slope. The proposed fill of approximately 20 cubic yds (15.3 
cubic m) will extend approximately 14 ft (4.3 m) seaward of the 
existing corrugated metal pipe outlet, and the toe of the fill will 
terminate approximately 5 ft (1.5 m) from the edge of the sea cliff. 
The manufactured slope area will be landscaped with primarily native, 
erosion control, low water use plants suited to a coastal marine 
environment.

Site 55F

    This site is also located on the 700 block of Coast Boulevard, 
southeast of Children's Pool Beach. The existing 10 ft-wide (3 m) 
sidewalk will be removed and a new 10 ft-wide (3 m) sidewalk will be 
constructed a minimum of 8 ft (2.4 m) from the top of the existing 
slope. The new sidewalk will have a deepened structural edge 5 ft (1.5 
m) in thickness to provide the structural capacity to span the rubble-
filled sea cave below. To minimize runoff, the curb will be installed 
and the sidewalk will be cross-sloped 1.5 percent toward the street and 
away from the bluff top. The existing wood posts and metal rails will 
be removed and new wood posts and metal rails will be located at the 
outer edge of the relocated sidewalk. The face of the existing vertical 
slope will be trimmed back somewhat to improve surficial stability and 
assist in the establishment of a vegetative cover. The exposed slope 
area will be landscaped with primarily native, erosion control, low 
water use plants suited to a coastal marine environment.

[[Page 67708]]

Site 57E

    This site is located on the 800 block of Coast Boulevard, southwest 
of Jenner Street, adjacent to Seal Rock. The existing 5 ft-wide (1.5 m) 
sidewalk will be removed and a new 5 ft-wide (1.5 m) sidewalk with a 
deepened structural edge 5 ft (1.5 m) in thickness will be constructed. 
The existing wood posts and wood rails will be removed and new wood 
posts and wood rails will be located at the outer edge of the 
reconstructed sidewalk. The exposed slope areas will be landscaped with 
primarily native, erosion control, low water use plants suited to a 
coastal marine environment.

Site 58A

    Site 58A is located on the 900 block of Coast Boulevard, southwest 
of Ocean Street. The existing 10 ft-wide (3 m) sidewalk will be removed 
and a new 10 ft-wide (3 m) sidewalk with a deepened structural edge 5 
ft (1.5 m) in thickness will be constructed. The existing wood posts 
and wood rails will be removed and new wood posts and wood rails will 
be located at the outer edge of the reconstructed sidewalk. The exposed 
slope areas will be landscaped with primarily native, erosion control, 
low water use plants suited to a coastal marine environment.

Comments and Responses

    A notice of receipt of the City of San Diego's application for wall 
replacement and bluff improvement projects at La Jolla, San Diego, CA, 
and proposed IHA was published in the Federal Register on August 20, 
2004 (69 FR 51632). That notice described in detail the proposed 
activity and the marine mammal species that may be affected by it. 
Additional information on harbor seals found in Central California 
waters can be found in Marine Mammal Stock Assessment Reports, which is 
available online at http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html. During the 30-day public comment period, 
comments were received from the Marine Mammal Commission (Commission) 
and one member of the public. The Commission concurs with NMFS' 
determinations concerning the impacts of the proposed activities on 
harbor seals and recommends that the authorization be granted.
    Comment 1: This project shouldn't happen because the seals would 
desert the area for a long period of time, making them homeless. There 
is much opposition to having seals in the La Jolla area, and this 
project is a ploy to hurt the seals so that they leave. This would be 
unfair to the people coming to see them. The comment period should be 
extended by another 90 days.
    Response:The intent of this project is not to evict the seals from 
the area. The bluff-improvements are necessary to increase public 
safety along the coast and to maintain and protect public access and 
rights-of-way that have been adversely affected by coastal erosion. 
Planned improvements will result in increased stability of the seaward 
edge of sidewalks, resulting in increased safety to pedestrians, 
including those coming to see the seals. This activity does not include 
improvements to Children's Pool itself.
    The project will not occur over a long period of time. The entire 
Cove Wall Replacement and Bluff Improvement Project is expected to take 
6 weeks or less. The duration of construction at any one of the four 
construction sites close to where harbor seals may be hauled out will 
be limited to six working days total. Demolition of each site is 
scheduled to last one day. Short term impacts that could occur include 
possible temporary reduction in utilization of the beach or Seal Rock 
at Children's Pool. These short term impacts may result in a temporary 
reduced number of seals using the haul out sites during, and 
potentially past, the hours of construction. However, this area has 
become a tourist spot for viewing harbor seals, and the current 
population of seals utilizing the Children's Pool area is accustomed to 
human activities and regular noise levels from people and traffic along 
Coast Boulevard. Therefore, potential impacts from the project are 
expected to be minimal to none. Depending on the disturbance, they may 
return to the haul-out site immediately, stay in the water for a length 
of time and then return to the haul-out, or temporarily haul-out at 
another site (NOAA, 1996). With the implementation of mitigation 
measures (see Mitigation), disturbance from construction-related 
activities is expected to have only a short term negligible impact to a 
small number of harbor seals. Short-term impacts are expected to result 
in a temporary reduction in utilization of haulout sites while work is 
in progress or until seals acclimate to the disturbance, and will not 
likely result in any permanent reduction in the number of seals at 
Children's Pool or at Seal Rock.
    Section 101(a)(5)(D) of the MMPA specifies a public comment period 
of 30 days for proposed IHA's.
    Comment 2: Seals might be killed or hurt by this project. The take 
is not incidental when a population is decimated. The take is 
substantial and the wording of the proposed authorization is misleading 
to the public. With California's population in the high millions, there 
is no reason why 27,000 seals cannot be tolerated.
    Response: Pacific harbor seals are widely distributed in the North 
Pacific Ocean. The estimated population of harbor seals in California 
is 27,863 (NOAA Draft Stock Assessment Report, 2003), with an estimated 
minimum population of 25,720 for the California stock of harbor seals. 
However, 27,000 seals will not be affected by this project. Recent 
population counts show that the harbor seal population in La Jolla is 
stable at approximately 150-200 seals. The maximum number of harbor 
seals using the Children's Pool haulout areas at one time can vary 
between 62 and 172 (H-SWRI, 1995-1997). Therefore, the maximum number 
that could potentially be impacted would be no more than 172.
    As described in the previous response, potential impacts from the 
project are expected to be minimal to none. Level B harassment may 
occur if hauled animals flush the haulout and/or move to increase their 
distance from construction-related activities, such as the presence of 
workers, noise, and vehicles. Recent studies (Lawson et al., 2002, and 
NAWS, 2002) show that Level B harassment, as evidenced by beach 
flushing, will sometimes occur upon exposure to rocket launch sounds 
with sound exposure levels of 90 dBA (re 20 micro-Pa\2\ -sec) or higher 
for harbor seals. The maximum received levels 100 ft away (30.5 m) from 
demolition and construction activities are expected to be about 90 dBA 
and 81 dBA, respectively. 57E is the closest of the four construction 
sites to any of the haulout areas. This site is approximately 170 ft 
(51.8 m) from Seal Rock (dependent on tide), and about 350 ft (106.7 m) 
from Children's Pool Beach. At this distance, construction noise will 
have attenuated to low levels and there should be little to no impact 
on the seals. Special attention will be given to this site during 
construction and monitoring (see Monitoring).
    Comment 3: The estimates of seal numbers in the area are often 
political in nature, designed to give a number that coincides with a 
desired political action.
    Response: NMFS uses all data and information resources available 
when making determinations. There are groups other than NMFS that 
collect information on the harbor seals that haulout at or near 
Children's Pool and Seal Rock. These include Hubbs-Sea World Research 
Institute and Friends of La Jolla Seals. Additional information

[[Page 67709]]

on harbor seals found in Central California waters can be found in 
NMFS' Marine Mammal Stock Assessment Reports, which is available online 
at http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html.

Mitigation

    Several mitigation measures to reduce the potential for harassment 
from wall replacement and bluff improvement construction activities 
will be implemented under the IHA. The primary mitigation measure is 
the restriction on the days and times when construction can take place. 
Demolition will be limited to one day at each of the four sites, 
ensuring that the highest noise levels will only occur for a short 
period of time. In addition, construction activities will not take 
place prior to 8:30 am and will not go beyond 3:30 pm. Harbor seals in 
this area are known to use haulout areas in greatest numbers in the 
afternoon. Since construction activities will be finished by 3:30 pm 
every day, this minimizes the number of harbor seals potentially 
disturbed. Disturbance to harbor seals has a more serious effect when 
seals are pupping or nursing, when aggregations are dense, and during 
the molting period. To ensure that construction activities are not 
overlapping with the pupping season, the contractor will coordinate 
with ``Friends of La Jolla Seals'' or Hubbs-SeaWorld Research Institute 
(HSWRI). Either of these organizations will confirm when the pupping 
season has come to an end, usually sometime in late June or early July, 
after the last pup has been weaned. Once this is confirmed, 
construction activities may begin with the approval of NMFS. The 
pupping season for harbor seals begins in early February; however 
pregnant females are hauled out at Children's Pool in the weeks leading 
up to the pupping season. Accordingly, all construction activity will 
be completed by the 1st of January, 2005. These mitigation measures 
will reduce the potential for Level B incidental harassment takes and 
eliminate the potential for injury or mortality of Pacific harbor 
seals.
    As mentioned, demolition of sidewalks at the top of the bluff 
slopes and excavation for the new sidewalks may result in some downhill 
movement of debris. Just prior to the construction necessitating its 
use, a debris fence will be installed parallel to and just below the 
bluff edge and held in place with stakes driven by hand using a large 
hammer. This ensures that demolition will result in a minimal amount of 
debris on Seal Rock or the nearby beach.

Monitoring

    Harbor seal haulouts will be monitored periodically during 
construction activities. Monitoring will be conducted by a qualified 
biologist approved by NMFS. During all monitoring periods, the 
following information will be recorded: date, time, tidal height, 
maximum number of harbor seals hauled out, number of adults and sub-
adults, number of females and males (if possible), and any observed 
disturbances to the seals. During periods of construction, a 
description of construction activities will also be recorded. 
Observations of unusual behaviors, numbers, or distributions of 
pinnipeds, including any rare or unusual species of marine mammals, 
will be reported to NMFS' Southwest Science Center allowing transmittal 
of this information to appropriate agencies and personnel for any 
potential follow-up observations.
    Prior to construction at each of the four sites, three full days of 
baseline monitoring will occur to assess harbor seal use of the 
haulouts before construction begins. Wall replacement and bluff 
stabilization activities will begin with one day of demolition at each 
site. Monitoring at each site during demolition will start one hour 
before demolition begins, run all day, and will be completed no sooner 
than one hour after it ends.
    Results from the pre-construction baseline monitoring will 
determine if mid-day monitoring is necessary for sites 55D, 55F, and 
58A during the days of construction following demolition. If it is 
determined that it is necessary and/or beneficial, monitoring will take 
place at each site during every day of construction starting one hour 
before construction begins each day and finishing one hour after it 
ends each day. If it is determined that mid-day monitoring is not 
necessary, two 2-hour monitoring sessions will occur each day of 
construction following demolition. The first session will begin one 
hour before the start of construction and end one hour after the start 
of construction, and then begin again one hour before the end of 
construction and end one hour after construction has finished for the 
day.
    Site 57E is the closest work site to Seal Rock, which is located 
about 170 feet (51.8 m) away from the site. At this distance, much of 
the construction noise will have attenuated to low levels. However, 
NMFS believes careful monitoring of this site is warranted. Despite 
results from baseline monitoring, monitoring will take place at site 
57E during every day of construction starting one hour before 
construction begins each day and finishing no earlier than one hour 
after construction ends each day.
    Sound levels 100 feet (30.5 m) from each site will be recorded 
during all periods of monitoring. If at any time indications of a 
substantial disturbance to harbor seals resulting from construction 
activities are observed, or if sound levels are found to be above 90 
dBA at a distance of 100 feet (30.5 m) from construction at any of the 
sites, the applicant will contact NMFS to provide this information. It 
will then be determined if any further mitigation or monitoring 
measures are needed, such as the installation of sound barriers. 
However, at this time NMFS is not requiring sound barriers because 
sound levels appear to be too low at most, if not all, sites to even 
cause Level B behavioral harassment.

Reporting

    A draft report will be submitted to NMFS Regional Administrator, 
Southwest Region, within 90 days after project completion. The 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 report will be considered to 
be the final report.
    The City of San Diego is planning on sharing and comparing data 
collected as a result of these monitoring efforts with other interested 
parties, such as the HSWRI or Friends of La Jolla Seals. Monitoring 
work during this project may be conducted in collaboration with these 
groups as well.

Estimates of Take by Harassment

    The estimated population of harbor seals in California is 27,863 
(NOAA Draft Stock Assesment Report, 2003), with an estimated minimum 
population of 25,720 for the California stock of harbor seals. Peak 
numbers of harbor seal counts for the La Jolla area in general were 166 
in June, 1996 and 172 in July, 1997 (H-SWRI, 1995-1997). These numbers 
were recorded at the peak of the breeding season, the typical time of 
maximum haulout. As stated earlier, the population in La Jolla is 
stable at approximately 150-200 seals. Population trends from 1999 
revealed that the largest counts of seals hauled out on the beach 
occurred during the period between January and May, with a peak in 
counts in June at Seal Rock. The maximum number of harbor seals using 
the Children's Pool haulout areas at one time can vary between 62 and

[[Page 67710]]

172 (H-SWRI, 1995-1997). Therefore, the maximum number that could be 
impacted would be 172. There is no anticipated impact from construction 
activities on the availability of the species or stocks for subsistence 
uses because there is no subsistence harvest of marine mammals in 
California.

Marine Mammal Impacts

    Level B Harassment may occur if hauled animals flush the haulout 
and/or move to increase their distance from construction-related 
activities, such as the presence of workers, noise, and vehicles. Short 
term impacts that could occur include possible temporary reduction in 
utilization of the beach or Seal Rock at Children's Pool. These short 
term impacts may result in a temporary reduced number of seals using 
the haul out sites during, and potentially past, the hours of 
construction. However, this area has become a tourist spot for viewing 
harbor seals, and the current population of seals utilizing the 
Children's Pool area is accustomed to human activities and regular 
noise levels from people and traffic along Coast Boulevard. Therefore, 
potential impacts from the project are expected to be minimal to none. 
The permanent abandonment of the Children's Pool area is also not 
anticipated because harbor seals have habituated to traffic noise. 
Depending on the disturbance, they may return to the haul-out site 
immediately, stay in the water for a length of time and then return to 
the haul-out, or temporarily haul-out at another site (NOAA, 1996).
    Recent studies (Lawson et al., 2002, and NAWS, 2002) show that 
Level B harassment, as evidenced by beach flushing, will sometimes 
occur upon exposure to launch sounds with sound exposure levels of 100 
dBA (re 20 micro-Pa\2\ -sec) or higher for California sea lions and 
northern elephant seals, and 90 dBA (re 20 micro-Pa\2\ -sec) or higher 
for harbor seals. Therefore, it is expected that most received noise 
levels at the harbor seal haulouts will be below levels that are likely 
to cause disturbance. However, to date that remains unknown. As stated 
earlier, the maximum received levels at 100 ft away (30.5 m) from 
demolition and construction activities are expected to be about 90 dBA 
and 81 dBA, respectively. Sites 55D and 55F are closest to Children's 
Pool Beach. These sites are approximately 250 ft (76.2 m) from the 
beach haulout area used by the harbor seals. At that distance there 
should be little to no impact on the seals. Sites 57E and 58A are 
closer to Seal Rock. 58A is almost 400 ft (122 m) from Seal Rock, and 
is not expected to cause any harassment of the seals hauled out on Seal 
Rock. 57E is the closest of the four to any of the haulout areas. This 
site is approximately 170 ft (51.8 m) from Seal Rock (dependant on 
tide), and about 350 ft (106.7 m) from Children's Pool Beach. At this 
distance, construction noise will have attenuated to low levels. 
However, special attention will be given to this site during 
construction and monitoring (see MONITORING).
    Demolition of sidewalks at the top of the bluff slopes and 
excavation for the new sidewalks may result in some downhill movement 
of debris. Just prior to the construction necessitating its use, a 
debris fence will be installed parallel to and just below the bluff 
edge and held in place with stakes driven by hand using a large hammer. 
The expected debris would be soil or small pieces of concrete that 
could be removed by hand or shovel. Noise levels for installing the 
fence and removing debris trapped in it will be low and unlikely to 
harass harbor seals. The distance of the sites to Seal Rock or the 
beach where the seals haul out will not allow debris to fall onto these 
areas.
    Incidental harassment resulting from bluff stabilization 
construction may occur in all age classes and sexes of harbor seals 
present in the Children's Pool area. The number of harbor seals at 
Children's Pool Beach and Seal Rock varies throughout the year. For the 
population of seals occupying Children's Pool, the numbers of seals 
that haul out vary with season, tide, and time of day (Hubbs-SeaWorld 
Research Institute 1995-1997). More haulout area is available to be 
occupied during low tide. However, sometimes those animals that are on 
land will move higher up the beach to avoid the approaching tide and 
thus do not necessarily leave the haulout area. For the La Jolla area 
in general, a greater number of animals were seen hauled out in late 
afternoon or evening, regardless of the tide. In general, there is a 
decrease in counts in late summer through winter in La Jolla. The 
largest numbers of seals are seen during the molting/breeding season. 
Also, the number of seals hauled-out generally decreased during the 
first few calm days after a storm.
    Although the seals in the area have become accustomed to the 
presence of tourists viewing the haulout site, the addition of 
construction workers, construction equipment (in particular the sudden 
noise of a jackhammer or power saw), and other project related 
activities could result in a temporary startle response when harbor 
seals may flush into the water. However, the likelihood of this 
occurring is very low, and with the implementation of mitigation 
measures, disturbance from construction-related activities is expected 
to have only a short term negligible impact to a small number of harbor 
seals. Demolition and construction work is not expected to result in 
injury or mortality because the required work restrictions and 
mitigation measures will minimize construction-related disturbance. At 
a maximum, the action is expected to result in a temporary reduction in 
utilization of haulout sites while work is in progress or until seals 
acclimate to the disturbance, and will not likely result in any 
permanent reduction in the number of seals at Children's Pool or at 
Seal Rock.

Endangered Species Act (ESA)

    NMFS has determined that the cove wall replacement and bluff 
improvement projects and the accompanying IHA will not have an effect 
on species listed under the ESA. Therefore, consultation under Section 
7 was not required.

National Environmental Policy Act (NEPA)

    On September 15, 2003, the City of San Diego completed an 
Environmental Impact Report (EIR) for the La Jolla Cove Wall 
Replacement and Bluff Improvements Project. In accordance with NOAA 
Administrative Order 216-6 (Environmental Review Procedures for 
Implementing the National Environmental Policy Act, May 20, 1999), NOAA 
Fisheries has reviewed the information contained in the EIR and 
determined that it accurately and completely describes the proposed 
action alternative, reasonable additional alternatives, and the 
potential impacts on marine mammals, endangered species, and other 
marine life that could be impacted by the preferred alternative and the 
other alternatives. Based on this review and analysis, NOAA Fisheries 
has adopted the City of San Deigo's EIR as its own document and made a 
Finding of No Significant Impact on September 2, 2004. As a result, 
NOAA Fisheries has determined that it is not necessary to issue a new 
Environmental Assessment (EA), a supplemental EA or an Environmental 
Impact Statement for the issuance of an IHA to the City of San Diego 
for this activity.

Determinations

    Based on the information contained in the application, the City of 
San Deigo's EIR, the August 20, 2004 (69 FR 51632)Federal Register 
notice and this document, NOAA Fisheries has determined that the cove 
wall

[[Page 67711]]

replacement and bluff improvement project at La Jolla, CA, will result, 
at most, in a temporary modification in behavior by Pacific harbor 
seals by head alerts and/or flushing from the beach. While behavioral 
modifications may be made by these species as a result of demolition 
and construction activities, this behavioral change is expected to 
result in no more than a negligible impact on the affected species. 
While the number of potential incidental harassment takes will depend 
on the distribution and abundance of marine mammals in the vicinity of 
the survey activity and the distance between the seals and the 
construction site, the number of potential harassment takings will be 
small, and no take by injury and/or death is anticipated. The project 
is not expected to interfere with any subsistence hunts. NMFS has 
therefore determined that the requirements of section 101(a)(5)(D) of 
the MMPA have been met and the authorization can be issued.

Authorization

    NMFS has issued an IHA to the City of San Diego to take small 
numbers of Pacific harbor seals incidental to wall replacement and 
bluff improvement projects, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated.

    Dated: November 15, 2004.
Laurie K. Allen,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 04-25741 Filed 11-18-04; 8:45 am]
BILLING CODE 3510-22-S