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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - [I.D. 030805A]

# AGENCY:

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

# ACTION:

 Notice of issuance of an incidental harassment authorization.

# SUMMARY:

In accordance with provisions of the Marine Mammal Protection Act (MMPA), notification is hereby given that an Incidental Harassment Authorization (IHA) has been issued to the California Department of Transportation (CALTRANS) to take small numbers of marine mammals, by harassment, incidental to seismic retrofit construction of the Richmond-San Rafael Bridge (the Bridge), San Francisco Bay (SFB), CA. 

# DATES:

This authorization is effective from September 06, 2005 to September 06, 2006.

# ADDRESSES:

A copy of the application may be obtained 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 or by telephoning the contacts listed here.  Documents cited in this notice may be viewed, by appointment, during regular business hours, at this address. 

# FOR FURTHER INFORMATION CONTACT:

Layne Bolen, NMFS, (301) 713-2289, ext. 117 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.                

An authorization 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 December 16, 2004, NMFS received a letter from CALTRANS requesting reauthorization of an IHA that was first issued to it on December 16, 1997 (62 FR 67045, December 23, 1997), was renewed on January 8, 2000 (65 FR 2375, January 14, 2000), September 19, 2001 (66 FR 49165, September 26, 2001), September 23, 2002 (67 FR 61323, September 30, 2002), and November 19, 2003 (68 FR 66076, November 25, 2003).  The authorization renewal request is for the possible harassment of small numbers of Pacific harbor seals (                    *Phoca vitulina*) and possibly some California sea lions (                    *Zalophus californianus*), incidental to seismic retrofit construction of the Bridge.                 

                    The Bridge is being seismically retrofitted to withstand a future severe earthquake.  Construction is scheduled to extend through the year 2005.  A detailed description of the work planned is contained in the Final Natural Environmental Study/Biological Assessment for the Richmond-San Rafael Bridge Seismic Retrofit Project (CALTRANS, 1996).  As in the previous IHAs, activities will include excavation around pier bases, hydro-jet cleaning, installation of steel casings around the piers with a crane, installation of micro-piles, and installation of precast concrete jackets.  Foundation construction will require approximately 2 months per pier, with construction occurring on more than one pier at a                           ( print page 54032)                        time.  In addition to pier retrofit, superstructure construction and tower retrofit work may also be carried out.  Other seismic retrofit work will include:                 

1. Installation of isolation bearings, needed to strengthen bridge structure;

2. Reinforcement of lower chord members and diagonal trusses by bolting new additional steel members and gusset plates to the existing members;

3. Cleaning and painting of new and existing steel members;

4. Removal and replacement of the truss shoe pins;

5. Deck rehabilitation and joint replacement at various locations on the bridge; and

6. Installation of temporary bracing prior to the removal of the steel chevron members on the piers followed by the installation of permanent Eccentric Braced Frames to provide additional strength.

Because seismic retrofit construction between piers 52 and 57 has the potential to disturb harbor seals hauled out on Castro Rocks, an IHA is warranted.

## Comments and Responses

A notice of receipt of the application and proposed authorization was published on April 5, 2005 (70 FR 17234), and a 30-day public comment period was provided on the application and proposed authorization.  NMFS received two comments on this IHA and proposed authorization:

*Comment 1:*                     The Marine Mammal Commission (Commission) reviewed the application and concurs that the Service's preliminary determinations are reasonable.  The Commission believes that the proposed mitigation measures are appropriate and recommends issuance of the IHA as proposed.                

*Response:*                     NMFS agrees.                

*Comment 2:*                     A commenter stated, “I oppose and object to the methods that are being used that will kill marine life in this area.  These seals/sea lions populations are already depleted.”                 

*Response:*                     No take by injury and/or death is anticipated, and harassment takes will be reduced to the lowest level practicable by implementation of the proposed work restrictions and mitigation measures (see Mitigation).  No deaths or injuries to marine mammals have been reported in association with this project since the first IHA issued in 1997.                 

## Description of Habitat and Marine Mammals Affected by the Activity

A description of SFB ecosystem and its associated marine mammals can be found in the CALTRANS application (CALTRANS, 1997) and in CALTRANS (1996).  Castro Rocks are a small chain of rocky islands located next to the Bridge and approximately 1500 ft (460 m) north of the Chevron Long Wharf.  They extend in a southwesterly direction for approximately 800 ft (240 m) from pier 55.  The rocks start at about 55 ft (17 m) from pier 55 (A rock) and end at approximately 250 ft (76 m) from pier 53 (F rock).  The chain of rocks is exposed during low tides and inundated during high tide. 

### Marine Mammals

                    General information on harbor seals and other marine mammal species found in Central California waters can be found in Forney et al. (2000, 2001, 2003), which are available at the following URL:                     *http://www.nmfs.noaa.gov/​prot_​res/​PR2/​Stock_​Assessment_​Program/​sars.html.*                     Please refer to these documents for information on these species.  The marine mammals likely to be affected by work in the Bridge area are limited to harbor seals and California sea lions.                

                    Harbor seals are widely distributed in the North Atlantic and North Pacific, and is the only marine mammal species expected to be found regularly in the Bridge area.  The minimum size of the California harbor seal population is estimated at 25,720 animals (Forney                     *et al.*, 2003).  A more detailed description of harbor seals was provided in the 1997 proposed notification of issuance of an authorization (62 FR 46480, September 3, 1997) with corrections and clarifications provided on December 23, 1997 (62 FR 67045).  This information is not repeated here, but may be found in those                     **Federal Register**                     notices.  Pups are born in mid- to late-March, peak numbers of pups are observed in early May, and, by the first week in June, all pups are weaned (Kopec and Harvey, 1995).  Estimated total mother and pup pairs at Castro Rocks were 35 in 1999, 40 in 2000 and 40 in 2001 (A. Bohorquez pers. comm in Green                     *et al.*, 2001).  This represents approximately 22-24 percent of the pups born in SFB annually.  The maximum number of individual pups hauled out at Castro Rocks from 2002 to 2004 were 44, 48 and 56 pups, respectively (Green                     *et al.*, 2004).  A maximum count of 594 adults and immature harbor seals was recorded at Castro Rocks in the Winter of 2004 (Green                     *et al.*, 2004).                

                     The California sea lion primarily uses the Central SFB area to feed.  California sea lions are periodically observed at Castro Rocks.  The minimum population size of the California sea lion (U.S. stock) is estimated to be 138,881 (Forney                     *et al.*, 2003).  No pupping or regular haulouts occur in the project area.                

## Potential Effects on Marine Mammals

                    The impact to the harbor seals and California sea lions is expected to be disturbance by the presence of workers, construction noise, and construction vessel traffic.  Disturbance from these activities is expected to have only a short-term negligible impact to approximately 600 adult and immature harbor seals, 50 harbor seal pups, and less than 5 sea lions annually (Green                     *et al.*, 2004; Green, D., pers. comm. August 26, 2005).  These disturbances will be reduced to the lowest level practicable by implementation of the proposed work restrictions and mitigation measures (see Mitigation).                 

                    Marine mammal monitoring under previous IHAs has been conducted at Castro Rocks and at two “control” haul-out locations in SFB - Mowry Slough and Yerba Buena Island (Green                     *et al.*, 2004) since 1998.  To date, over 14,000 hours of observations have been conducted at these sites with two-thirds of those hours at Castro Rocks.  While disturbances can consist of head alerts, approaches to the water, and flushes into the water, only the latter behavior is considered by NMFS to be Level B harassment under these circumstances.  At Castro Rocks, of all flush disturbances monitored during the day, the major harassment sources were watercraft (e.g. motorboats, sailboats, tankers, kayaks and jet skis) with 0.0990 disturbances/hr field time (d/hr); wildlife (seals and birds) with 0.0635 d/hr; other man-made (debris, workmen on bridge, other people) with 0.0695 d/hr; and automobiles with 0.0157 d/hr.  Construction activities resulted in 0.0165 d/hr.  There were fewer flushes observed at night.  More detailed information on the extent of disturbance at Castro Rocks by activities other than the requested authorization is available in Green                     *et al.*                     (2004).                 

                    During the work period (July 16 through March 1), the incidental harassment of harbor seals and, on rare occasions, California sea lions is expected to occur on a daily basis.  In addition, the number of seals disturbed will vary daily depending upon tidal elevations.  Monitoring during construction periods by Green et al. (2004) indicates that although overall seal numbers each month of the year are not significantly different across years, there are differences in subsite use by seals at Castro Rocks during both the daytime and nighttime.  For example, the average number of seals hauled out on Castro Rocks (rocks A and C) during                           ( print page 54033)                        the fall of 2001 (when construction activity was taking place within the area of the haul-out site) was significantly different than the average number of seals hauled out on Castro Rocks during 1998-2000, prior to the construction period.  For a more detailed discussion on the distribution of harbor seals during the work and non-work periods and levels of impact by various natural and anthropogenic disturbance sources, please see Green                     *et al.*                     (2004) which is available upon request (see                     **ADDRESSES**                    ).                

California sea lions have been shown to react to pile driving noise by porpoising quickly away from the site (SRS Technologies, 2001), but it is not known whether they will react to general construction noise and move away from the rocks during construction activities.  However, sea lions are generally thought to be more tolerant of human activities than harbor seals and are, therefore, less likely to be affected.

## Potential Effects on Habitat

Short-term impacts of the activities are expected to result in a temporary reduction in utilization of the Castro Rocks haulout site while work is in progress or until seals acclimate to the disturbance.  This will not likely result in any permanent reduction in the number of seals at Castro Rocks.  The abandonment of Castro Rocks as a harbor seal haulout and rookery is not anticipated since existing traffic noise from the Bridge, commercial activities at the Chevron Long Wharf used for off-loading crude oil, and considerable recreational boating and commercial shipping that currently occur within the area have not caused long-term abandonment.  In addition, mitigation measures and work restrictions are designed to preclude abandonment.

Therefore, as described in detail in CALTRANS (1996), other than the potential short-term abandonment by harbor seals of part or all of Castro Rocks during retrofit construction, no impact on the habitat or food sources of marine mammals are likely from this construction project.

## Mitigation

Several mitigation measures to reduce the potential for harassment will be implemented by CALTRANS as part of their activity.  With the exception of the Concrete Trestle Section, between 9 p.m. and 7 a.m. no piles will be driven (i.e., no repetitive pounding of piles) on the Bridge and noise levels will not exceed 86 dBA at 50 ft (15 m).  Seismic retrofitting will cease in the vicinity of Castro Rocks (piers 52 through 57) during the pupping/molting restriction period (March 1 through July 15). 

Previous authorizations (1997-2001) required CALTRANS to comply with the following mitigation measures:  (1) A February 15 through July 31 restriction on work in the water south of the Bridge center line and retrofit work on the Bridge substructure, towers, superstructure, piers, and pilings from piers 52 through 57; (2) no watercraft will be deployed by CALTRANS employees or contractors during the year within the exclusion zone located between piers 52 and 57 except for when construction equipment is required for seismic retrofitting of piers 52 through 57; and (3) minimize vessel traffic to the greatest extent practicable in the exclusion zone when conducting construction activities between piers 52 and 57.  From 1997 through September 2002, the boundary of the exclusion zone was rectangular in shape (1700 ft (518 m) by 800 ft (244 m)), completely enclosing Castro Rocks and piers 52 through 57, inclusive.  The northern boundary of the exclusion zone was located 300 ft (91 m) from the most northern tip of Castro Rocks, and the southern boundary was located 300 ft (91 m) from the most southern tip of Castro Rocks.  The eastern boundary was located 300 ft (91 m) from the most eastern tip of Castro Rocks, and the western boundary was located 300 ft (91 m) from the most western tip of Castro Rocks.  The exclusion zone is restricted as a controlled access area and is marked off with buoys and warning signs for the entire year.

In 2002 (see 67 FR 61323, September 30, 2002), NMFS modified the Work/Boat Exclusion Zone (W/BEZ) so that the eastern boundary was shifted from 100 ft (31 m) east of Pier 57 to 100 ft (31 m) west of Pier 57.  This maintains a 400-ft (122-m) “buffer” as opposed to the previous 600-ft (183-m) buffer, between the work at Pier 57 and “A” rock.  This modification is reasonable based on observed seal behavior during the construction within the W/BEZ that harbor seals adjusted their location preference on Castro Rocks by moving westerly to rocks further from the construction (see discussion previously in this document).  However, CALTRANS notes that there has not been a statistically significant change in the total numbers of animals that utilize the Castro Rocks haulout.  The eastern boundary of the exclusion zone was relocated to its original position at 300 ft (91 m) from the most eastern tip of Castro Rocks upon conclusion of work at Pier 57.  This IHA does not include any further changes of the exclusion zone and will be identical to the previous IHA.

In addition to shifting the W/BEZ, in 2002, NMFS extended the period in which work was allowed in the vicinity of Castro Rocks from February 15th to March 1st.  CALTRANS requested this modification due to unforseen circumstances affecting the ability of the contractor to the seismic retrofit work on Pier 57.  The original Work Closure Period (February 15-July 31) was designed to encompass the entire harbor seal pupping and breeding seasons and nearly the entire molting season at Castro Rocks.  Thus, the Work Closure Period included the entire pupping season at Castro Rocks and a substantial pre-pupping period when females are moving into pupping areas (see 62 FR 67045, December 23, 1997).  Moving the start of the Work Closure Period from February 15th to March 1st still provides a 2-week window prior to the onset of successful pupping (March 15th), and because NMFS did not find scientific evidence indicating that female harbor seals need a “quiet period” from general noise in order to pup successfully, NMFS determined that shifting the Work Closure Period from February 15th to March 1st would not have a significant impact on harbor seal pupping.

                    In 2002, NMFS also modified the date at which work is allowed to start in the vicinity of Castro Rocks from August 1st to a new date of July 16th.  As mentioned in previous documents, newborn harbor seal pups are able to swim immediately after birth (Zeiner et al., 1990) and pups are weaned by the first week of June.  Therefore, terminating the Closure Period on July 16th is not expected to affect pup survival.  Under previous authorizations, the July 31st ending date for the Work Closure Period was established to protect harbor seals during the molting season.  However, those documents also noted that NMFS believed that it is likely that harbor seals evolved adaptive mechanisms to deal with exposure to the water during the molt.  For example, on some harbor seal haul-outs (such as Castro Rocks) during the molting season seals must enter the water once or even twice a day due to tidal fluctuations limiting access to the haul-out.  Also, since harbor seals lose hair in patches during the molt, they are never completely hairless and would not be as vulnerable to heat loss in the water during this period compared to other seals (e.g., elephant seals) that lose their all their hair at one time.  Finally, NMFS notes that if the levels of harbor seal disturbance during the molt are relatively high, seals are likely to utilize other local haul-out sites during the                           ( print page 54034)                        molt (DeLong, R., pers. comm. 1997; Hanan, D., pers. comm. 1997; Harvey, J., pers. comm. 1997).  Hanan (1996) found that although harbor seals tagged at an isolated southern California haul-out tended to exhibit site-fidelity during the molt, some seals were observed molting at other nearby haul-outs.  Based on these reasons, NMFS determined that terminating the Closure Period on July 16th would not significantly affect harbor seals in general or molting seals at Castro Rocks in particular.                

## Monitoring

NMFS will require CALTRANS to continue to monitor the impact of seismic retrofit construction activities on harbor seals at Castro Rocks.  Monitoring will be conducted by one or more NMFS-approved monitors.  CALTRANS is to monitor at least one additional harbor seal haulout within San Francisco Bay to evaluate whether harbor seals use alternative haulout areas as a result of seismic retrofit disturbance at Castro Rocks. 

The monitoring protocol will be divided into the Work Period Phase (July 16 through February 28) and the Closure Period Phase (March 1 through July 15).  During the Work Period Phase and Closure Period Phase, the monitor(s) will conduct observations of seal behavior at least 3 days/week for approximately one tidal cycle each day at Castro Rocks.  The following data will be recorded:  (1) number of seals and sea lions on site; (2) date; (3) time; (4) tidal height; (5) number of adults, subadults, and pups; (6) number of individuals with red pelage; (7) number of females and males; (8) number of molting seals and sea lions; and (9) details of any observed disturbances.  Concurrently, the monitor(s) will record general construction activity, location, duration, and noise levels.  At least two nights/week, the monitor will conduct a harbor seal and sea lion census after midnight at Castro Rocks.  In addition, during the Work Period Phase and prior to any construction between piers 52 and 57, inclusive, the monitor(s) will conduct baseline observations of seal and sea lion behavior at Castro Rocks and at the alternative site(s) once a day for a period of five consecutive days immediately before the initiation of construction in the area to establish pre-construction behavioral patterns.  During the Work Period and Closure Period Phases, the monitor(s) will conduct observations of seal and sea lion behavior, and collect appropriate data, at the alternative Bay haulout at least three days/week (Work Period) and two days/week (Closure Period), during a low tide. 

In addition, NMFS will require that, immediately following the completion of the seismic retrofit construction of the Bridge, the monitor(s) will conduct observations of seal and sea lion behavior, at Castro Rocks, at least five days/week for approximately 1 tidal cycle (high tide to high tide) each day, for one week/month during the months of April, July, October, and January.  At least two nights/week during this same period, the monitor will conduct an additional harbor seal and sea lion census after midnight.

## Reporting

                    Under previous IHAs, CALTRANS has provided monitoring reports (Green                     *et al.*, 2001, 2002, 2003, 2004) that are used by NMFS to help assess the effectiveness of the mitigation measures and corroborate our negligible impact determination.  Copies of these reports are available upon request (see                     **ADDRESSES**                    ).                 

CALTRANS will provide weekly reports to the Southwest Regional Administrator (Regional Administrator), NMFS, including a summary of the previous week's monitoring activities and an estimate of the number of harbor seals and sea lions that may have been disturbed as a result of seismic retrofit construction activities.  These reports will provide dates, time, tidal height, maximum number of harbor seals ashore, number of adults,  sub-adults and pups, number of females/males, number of harbor seals with a red pelage, and any observed disturbances.  A description of retrofit activities at the time of observation and any sound pressure levels measurements made at the haulout will also be provided.  A draft 6-month interim report must be submitted to NMFS by March 06, 2006.

Because seismic retrofit activities may continue beyond the date of expiration of this IHA (presumably under a new IHA), a draft final report must be submitted to the Regional Administrator within 90 days after the expiration of this IHA.  A final report must be submitted to the Regional Administrator within 30 days after receiving comments from the Regional Administrator on the draft final report.  If no comments are received from NMFS, the draft final report will be considered to be the final report.

CALTRANS will provide NMFS with a follow-up report on the post-construction monitoring activities within 18 months of project completion in order to evaluate whether haulout patterns are similar to the pre-retrofit haul-out patterns at Castro Rocks.

## National Environmental Policy Act 

                    NMFS prepared an Environmental Assessment (EA) in 1997 that concluded that the impacts of CALTRANS' seismic retrofit construction of the Richmond-San Rafael Bridge will not have a significant impact on the human environment.  A copy of that EA, which includes the Finding of No Significant Impact (FONSI) is available upon request (see                     **ADDRESSES**                    ).  This action has not changed significantly from the action analyzed in the 1997 EA.  Therefore, this action is not expected to change the analysis or conclusion of the 1997 EA.                

## Endangered Species Act (ESA)

On January 27, 1997, NMFS completed consultation under section 7 of the ESA with the Federal Highway Administration (FHWA) on Caltrans' proposed seismic retrofit work on the Richmond-San Rafael Bridge.  That consultation concluded that the project is not likely to adversely affect winter-run chinook salmon.  Because the proposed underlying action has not changed significantly from that considered in the consultation, NMFS has preliminarily determined that issuance of an IHA will not lead to any effects to listed species nor critical habitat for any species apart from those that were considered in the consultation on FHWA's action.

## Conclusions

NMFS has determined that the short-term impact of the seismic retrofit construction of the Bridge, as described in this document, should result, at worst, in the temporary modification in behavior by small numbers of harbor seals and, possibly, by small numbers of California sea lions.  While behavioral modifications, including temporarily vacating the haulout, may be made by these species to avoid the resultant visual and acoustic disturbance, this action is expected to have a negligible impact on the animals.  In addition, no take by injury and/or death is anticipated, and harassment takes will be at the lowest level practicable due to incorporation of the mitigation measures mentioned previously in this document.

## Authorization

                    For the reasons previously discussed, NMFS has reissued an IHA for a 1-year period, for the incidental harassment of harbor seals and California sea lions incidental to CALTRANS' seismic retrofit of the Richmond-San Rafael Bridge, San Francisco Bay, CA, provided the above mentioned mitigation, monitoring, and reporting                           ( print page 54035)                        requirements are incorporated without the submission of additional scientific information.                

Dated:  September 6, 2005.

James H. Lecky,

Director, Office of Protected Resources, National Marine Fisheries Service.

[FR Doc. 05-18089 Filed 9-12-05; 8:45 am]

BILLING CODE 3510-22-S