[Federal Register Volume 70, Number 176 (Tuesday, September 13, 2005)]
[Notices]
[Pages 54031-54035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18089]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 030805A]


Incidental Take of Marine Mammals Incidental to Specified 
Activities; Seismic Retrofit of the Richmond-San Rafael Bridge, San 
Francisco Bay, 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), 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

[[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

[[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

[[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

[[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]
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