![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Small Takes of Marine Mammals Incidental to Specified Activities; Harbor Activities at Vandenberg Air Force Base, CA
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 23, 2002 (Volume 67, Number 100)]
[Notices]
[Page 36151-36158]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my02-38]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 041602B]
Small Takes of Marine Mammals Incidental to Specified Activities;
Harbor Activities at Vandenberg Air Force Base, CA
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of issuance of incidental harassment authorization.
-----------------------------------------------------------------------
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 harbor activities related to the Delta IV/
Evolved Expendable Launch Vehicle (EELV) at south Vandenberg Air Force
Base, CA (VAFB) has been issued to The Boeing Company (Boeing).
DATES: Effective from May 20, 2002, until May 20, 2003.
ADDRESSES: The application is available by writing to Donna Wieting,
Chief, Marine Mammal Conservation Division, Office of Protected
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3225,
or by telephoning one of the contacts listed here.
FOR FURTHER INFORMATION CONTACT: Simona Perry, (301) 713-2322, ext. 106
or Christina Fahy, (562) 980-4023.
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 to allow, upon request, the
incidental, but not intentional taking of small numbers 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 either regulations are issued or, if the taking
is limited to harassment, notice of a proposed authorization is
provided to the public for review.
Permission for incidental takings may be granted if NMFS finds that
the taking
[[Page 36152]]
will have no more than a negligible impact on the species or stock(s)
and 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. 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''].
Subsection 101(a)(5)(D) establishes a 45-day time limit for NMFS
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
comment period, NMFS must either issue or deny issuance of the
authorization.
Summary of Request
On January 28, 2001, NMFS received an application from the 30\th\
Space Wing on behalf of Boeing requesting an authorization for the
harassment of small numbers of Pacific harbor seals, and other marine
mammal species, incidental to harbor activities related to the Delta
IV/EELV, including: wharf modification, transport vessel operations,
cargo movement activities, and harbor maintenance dredging. The harbor
where activities will take place is on south VAFB approximately 4
kilometers (km) (2.5 miles, mi) south of Point Arguello, CA, and
approximately 1.6 km (1 mi) north of the nearest marine mammal pupping
site (i.e., Rocky Point).
Specified Activities
Modifications to the existing wharf are needed to accommodate the
specially designed transport vessel, the Delta Mariner, that will be
used for delivering the Delta IV/EELV's common booster core (CBC).
These modifications involve removing portions of the wharf surface, re-
surfacing the wharf with concrete and stainless steel rub-rails, and
construction of a ramp on the seaward portion of the wharf. Equipment
to be used includes: a skip-loader, concrete saw, concrete ready-mix
truck, and dump truck. Measured noise levels of equivalent heavy
equipment ranged from 61 dB A-weighted (quietest measurement from
clamshell dredge measurement) to 81 dB A-weighted (loudest measurement
from roll-off truck transporter) at a distance of 76.2 meters (m) (250
feet, ft). (Acentech, 1998). These wharf modifications will take
approximately 6 weeks.
Delta Mariner CBC off-loading operations and associated cargo
movement activities will occur a maximum of 6 times per year, with the
first Mariner visit scheduled for spring of 2002 and the first off-load
operation for August 2002. The Delta Mariner is a 95.1 m (312 ft) long,
25.6 m (84 ft) wide steel hull ocean-going vessel capable of operating
at a 2.4 m (8 ft) draft. For the first few visits to the south VAFB
harbor, tug boats will accompany the Mariner. Sources of noise from the
Delta Mariner vessel include ventilating propellers used for
maneuvering into position and the cargo bay door when it becomes
disengaged. Removal of the CBC from the Mariner requires use of an
Elevating Platform Transporter (EPT). The EPT is an additional source
of noise, with sound levels measured at a maximum of 82 dB A-weighted
6.1 m (20 ft) from the engine exhaust (Acentech, 1998). EPT operation
procedures require 2 short (approximately 1/3 seconds) beeps of the
horn prior to starting the ignition. At 60.9 m (200 ft) away, the sound
level of the EPT horn ranged from 62-70 dB A-weighted. Containers
containing flight hardware items will be towed off the Mariner by a
tractor tug that generates a sound level of approximately 87 dB A-
weighted at 15.2 m (50 ft) while in operational mode. Total time of
Mariner docking and cargo movement activities is estimated at between
14 and 18 hours in good weather.
To accommodate the Delta Mariner, the harbor will need to be
dredged to a working depth of approximately 3.0 m (10 ft) mean lower
low water level plus a 0.61 m (2 ft) over-dredge. Dredging of the
harbor will involve the use of heavy equipment, including a clamshell
dredge, dredging crane, a small tug, dredging barge, dump trucks, and a
skip loader. Measured sound levels from this equipment are roughly
equivalent to those estimated for the wharf modification equipment: 61-
81 dB A-weighted at 76.2 m (250 ft). Dredge operations, from set-up to
tear-down, would continue 24-hours a day for 3-5 weeks. The frequency
of maintenance dredging will be based on fill rate surveys conducted
periodically during the first year following the initial dredge to
determine the sedimentation rate. Boeing expects maintenance dredging
would likely be required every 2-3 years.
A more detailed description of the work proposed for 2002 is
contained in the application which is available upon request (see
ADDRESSES) and in the Final US Air Force Environmental Assessment for
Harbor Activities Associated with the Delta IV Program at Vandenberg
Air Force Base (ENSRI, 2001).
Comments and Responses
On March 4, 2002 (67 FR 9702), NMFS published a notice of receipt
and a 30-day public comment period was provided on the application and
proposed authorization. Comments were received from the Marine Mammal
Commission (MMC), Boeing, The Otter Project, and two private citizens.
NMFS has not addressed in this document those comments and/or
information that are contained in, and not in disagreement with,
statements made in either the Boeing application or the notice of
proposed authorization (67 FR 9702, March 4, 2002).
Activity Concerns
Comment 1: Has any work actually begun on this application (meaning
physical work at the harbor) without NMFS benefit of public comment?
Response: None of the actions covered in the permit application
have begun.
Comment 2: Why hasn't the noise from the jackhammer been included
in Boeing's application?
Response: Boeing's application includes an initial list of
equipment required for the wharf modification that was requested from
the construction contractor. A jackhammer was not listed on this
initial list. The contractor has since informed Boeing that a
jackhammer will be required for approximately a week. National
Institute for Occupational Safety and Health (NIOSH) data shows that a
jackhammer will generate between 102-111 dB measured at the operator's
ear.
Comment 3: Where was the EPT noise level of 85 dB measured from?
What is the noise level when the EPT engine is under a load condition?
Is the EPT engine diesel, gasoline, or powered by some other source?
[[Page 36153]]
Response: The EPT noise level of 85 dB was measured less than 6.1 m
(20 ft) from the engine exhaust. The measurement provided in the
application was the noise level of the EPT with the engine revved. The
engine runs at a constant speed with power to the drive train regulated
by a hydraulic pump. The noise level of the EPT under load would be
comparable to, but not precisely the same as, the noise measurements
provided. The engine powering the EPT is a Diesel engine, manufactured
by Daimler Chrysler AG (Mercedes), model OM442A, 340 HP. It conforms to
2000 U.S. EPA California and Canada regulations for large non-road
compression-ignition engines. It is certified to be operated on diesel
fuel.
Comment 4: Is the ``tractor tug'' electric, diesel, or gasoline
powered? Is the tractor tug actually the roll-off truck transporter
listed in the application? Define the ``operational mode'' of the
``tractor tug.'' For example, what is the noise level when the
``tractor tug'' engine is under a load condition?
Response: The tractor tug is more accurately referred to as a
standard diesel truck tractor. It has yet to be purchased, but the
selected manufacturer is Peterbilt. The noise level will meet OSHA
standards. Operational mode is the condition of operation under a load.
The noise level under a load condition under load would be comparable
to but not precisely the same as the noise measurements provided in the
application.
Comment 5: How much dredge material will be generated? Where is the
National Environmental Policy Act (NEPA) documentation to support
placement of this dredged material?
Response: 3,000-5,000 cubic yards of dredge material will be
generated. All dredge activities, including the maintenance dredging,
were described and evaluated in the final Environmental Assessment (EA)
for Harbor Activities at VAFB, dated July 2001. In the future, dredged
material will either be used for beach replenishment at a site about
3.2 km (2 mi) south of the harbor, or will be used to refill an old
quarry at Point Pedernales (Honda Point) back to its original profile.
Beach replenishment would entail placing the sediments in the shallow
sub-tidal where it will be re-entrained in the long-shore current.
Comment 6: Who makes the determination that the crew and captain of
the Delta Mariner are capable of approaching and successfully mooring
at the wharf? Will the same crew and captain that the tug boats
accompany for these first few visits be present for all other visits?
Response: Both captain and vessel are licensed by the United States
Coast Guard (USCG). The USCG also issues the Certificate of Inspection
that gives a vessel the operational endorsement for conducting
``voyages'' in the Coastwise Registry. This includes the necessary
arrival and departure from wharves or docks.
The captains and crew of the Delta Mariner were selected by their
professional skill and experience operating large tankers on the U.S.
West Coast. The captains will have been operating the Mariner for over
2 years prior to visiting VAFB harbor during the latter half of 2002.
The experience of the captains and the crew operating the Mariner
includes constrained inland water passages and open ocean voyages over
a wide spectrum of environmental conditions.
Foss, the tug boat company, is aware that greater caution is
required for mooring and cargo operations at VAFB than at other Delta
IV ports. Foss will put safety before schedule and approach the VAFB
wharf in weather, tide, and sea conditions that reduce risk. After the
first arrival of the Delta Mariner at the VAFB harbor, Foss intends to
have a captain aboard the vessel that has previously called at VAFB.
Foss will use tug boats local to the ports of Hueneme or Los
Angeles requesting officers with VAFB harbor experience. Neither Foss
nor Boeing can control who is assigned to operate the tug boat, but it
is not a sound business decision to send the inexperienced operator.
Comment 7: Where are the noise contour charts of the 10-fold
increase to the ambient background to support the application?
Response: The EPT horn maximum noise level is 112 dB. A jackhammer
maximum noise level is 111 dB. Ambient noise measured at the VAFB
harbor is between 35 and 48 dB on a typical day (ENSRI, 2001). Given
that 35 dB x 10 = 350 and 48 dB x 10 = 480, 112 dB is only 2-3 times
higher than the measured ambient background noise.
Comment 8: Regarding the initial dredging, is the responsible
entity NMFS (for the initial dredging details listed in the public
notice but not in the application), VAFB or Boeing? If NMFS authorizes
Boeing as stated in the Federal Register, then will NMFS issue a
separate authorization to VAFB for the VAFB harbor maintenance
dredging? Based on the NEPA documents referenced, who has
responsibility as the action proponent for the actions listed in the
application?
Response: In accordance with agreements signed by the Air Force and
Boeing, Boeing is responsible for payment of all fines or penalties
imposed as a result of administrative or judicial enforcement actions
or citizens' suits for violations of federal, state, or local laws or
regulations arising out of the conduct or activities related to the
agreement. Boeing is the action proponent.
Comment 9: Is the previous harbor dredging required to support
April 2002 operations? If so, was there an incidental harassment
authorization application for this initial dredging?
Response: The previous dredging was to allow for the delivery of
the launch table, an oversized steel structure that is part of the
launch pad. The launch table was built in Washington State and moved
down the coast by barge, as it was far too large to go by road. It
required the use of the VAFB harbor and resulted in the 2001 dredging.
There was no application for a marine mammal incidental harassment
authorization since NMFS was of the opinion at the time that MMPA
coverage was not necessary for the dredging operation because few
marine mammals were likely to occur in the project area and harassment
was unlikely. However, to ensure that NMFS' opinion was correct,
monitoring was required during initial dredging, and this monitoring
showed that there were small numbers of harbor seals hauled out on
rocks 180 m (591 ft) from the dock. Since these seals could potentially
be harassed by harbor activities, Boeing decided to apply for the
requisite MMPA authorization.
Comment 10: Has NMFS unilaterally determined these initial dredging
requirements to support Delta Mariner operations in the absence of any
request in the application? Is NMFS asking the public to comment on an
action in an application that has already begun without NMFS
authorization?
Response: NMFS was of the opinion at the time of initial dredging
that a permit was not necessary for the operation. None of the actions
covered in Boeing's authorization application have begun.
Marine Mammal Impact Concerns
Comment 11: Is leaving out impacts on the dolphins mentioned in the
application an oversight on the part of NMFS or a technical deficiency
of the application?
Response: The dolphins referenced in the application are a cluster
of concrete piles topped with a bollard and used for mooring a vessel.
[[Page 36154]]
Comment 12: Where is the scale navigational chart showing current
depths, proposed depths for the initial dredging (if included in this
application), area to be dredged, and location of seal haul-outs? At
what distance are the marine mammals expected to be during these
periods of vessel activity in harbor)?
Response: This application does not include the initial dredging.
As addressed in Comment 9, there was no MMPA authorization during
initial dredging. The application contains a photo with an outline of
the dredge area. This same photo also indicates where the harbor seals
haul out during low tide. The distance is 180 m (591 ft) from the main
seal haul-out to the southern edge of the dock.
Comment 13: Where are the analyses to address air quality impacts
on marine mammals from the operation of the Delta Mariner, the heavy
equipment involved with wharf modifications, and the heavy equipment
involved with launch vehicle/cargo handling? Where are the impact
analyses on marine mammals to support Delta Mariner discharges from
shipboard hotel services as well as the typical in-port maintenance
that is conducted?
Response: Analysis of air quality in general was addressed in the
Supplemental EIS, dated March of 2000. However, this air quality
analysis did not address potential impacts to marine mammals. There
will be no discharge from shipboard hotel service or in-port
maintenance while the Delta Mariner is in the harbor. The Delta Mariner
will be making deliveries, and will minimize time spent at VAFB.
Comment 14: Where are the analyses of the resultant harassment
associated with loss of bottom flora and fauna in the food chain for
marine mammals, impacts on water quality (e.g., turbidity, pollutants),
and other potentially adverse impacts in this application to support
the conclusions cited in the public notification that there is at worst
only temporary modification to behavior?
Response: As discussed in other responses, the re-dredging activity
will be limited to those areas that had been dredged in the past. Based
on studies conducted over the past two decades and cited in the EA
(ENSRI, 2001), benthic resources in the dredge footprint consist of
small infaunal invertebrates. Harbor seals foraging in the area around
the harbor do not feed on these small organisms directly. Fish that
could feed on these organisms and that could be a potential food source
for the seals are sufficiently wide ranging that they would not be
substantially affected by this temporary loss of a food source. The
benthic community has developed over the past 18 years since the
current harbor configuration was created. Because this community is
adapted to this very dynamic environment of moving sands, it is
expected to recover quickly after dredging events. Thus, the continued
periodic dredging of the harbor is not expected to directly or
indirectly affect the food resources of the adjacent seals.
Comment 15: Based on recent NMFS concerns over US Navy, commercial,
and private water-borne noise issues and their significant adverse
affects on marine mammals, where are the analyses to address water-
borne noise impacts from the operation of the Delta Mariner in such
shallow water, the heavy equipment involved with wharf modifications,
and the heavy equipment involved with vehicle/cargo handling?
Response: There have been very few studies on the effects of water-
borne noise from dredging or other construction operations on marine
mammals. NMFS is currently in the process of determining safety
criteria for marine species exposed to underwater sound, including
impulsive and continuous noise. Until the agency publishes these
criteria, however, NMFS has preliminarily determined that marine
mammals may risk incurring a temporary threshold shift when exposed to
underwater impulsive sound pressure levels of 180 dB re 1 micro-Pa for
cetaceans and 190 dB re 1 micro-Pa for pinnipeds. Marine mammals have
also shown behavioral changes when exposed to impulse sound pressure
levels of 160 dB re 1 micro-Pa and continuous sound pressure levels of
120 dB. NMFS does not believe that the underwater noise emanating from
this project will be loud enough to harm marine mammals in the area.
However, harbor seals may be temporarily displaced from the area due to
a combination of disturbances: auditory exposure to underwater sound,
and the visual exposure to boats, heavy equipment and people.
Comment 16: The MMC suggests that NMFS consider providing
authorization for the disturbance of a small number of individuals of
other marine mammal species that are uncommon, yet could possibly be
disturbed, in the south VAFB area, including California sea lions,
northern elephant seals, and northern fur seals.
Response: NMFS, in considering MMC's suggestion, has reviewed
previous authorizations issued to VAFB as well as monitoring reports
submitted as part of the reporting requirements of these
authorizations. Based on review of these reports, NMFS has concluded
that this IHA to Boeing should include authorization to incidentally
harass small numbers of California sea lions, northern elephant seals,
and northern fur seals. This conclusion is based on reports that
California sea lions haul out in small numbers on South Rocky Point
(approximately 3 km or 1.9 mi from the boat dock area) and Point Sal
(northern limit of VAFB) during the fall, and that northern elephant
seal pups and juveniles sporadically haul out for short periods during
the spring on both north and south VAFB. According to the IHA issued to
Boeing, a maximum of 10 California sea lions, 10 northern elephant
seals, and five northern fur seals may be incidentally harassed during
Boeing's harbor activities on south VAFB.
Habitat Concerns
Comment 17: What impact will the placement of dredged materials
have on marine mammals?
Response: Beach replenishment with dredged materials would entail
placing the sediments in the shallow sub-tidal where it will be re-
entrained in the long-shore current. Because marine mammals do not use
this beach for hauling out, there will be no impacts from this disposal
option. Disposal of dredged materials at Honda Point would entail
activities essentially the same as those covered in the Final EA of
July 2001. Regardless of which action is taken, the proper Air Force
approval forms will be submitted to the 30th Space Wing for review, and
a Supplemental EA for this activity will be prepared if it is deemed
necessary.
Comment 18: Where are the elevation drawings showing the ramp
modification with respect to typical tidal fluctuations, particularly
high tides where the lower ramp may induce haul out of marine mammals
onto it?
Response: Marine mammals do not currently use the wharf as a high
tide haul-out location. Only 0.19 m (7.5 in) are being removed from the
overall height of the wharf, which is unlikely to make the surface low
enough to induce marine mammals to start using it for a high tide haul-
out site. Based on the as-built drawings, the surface of the dock is
approximately +12 ft (+3.7 m) mean lower, low water (MLLW). Since
maximum high tides in the harbor are no more than about 8 ft (2.4 m)
MLLW, harbor seals would be unable to and have not been observed to
haul out on the dock.
Cumulative Impacts
Comment 19: What is the cumulative impact of harassing these marine
[[Page 36155]]
mammals over this extended period of time (14 hours) over repeated
potential haul-out periods?
Response: Over 14 hours there are usually only two low tide periods
and whether seals do or do not haul-out near the dock depends on how
high the low tide is and how low the high tide is. For example: On a
given day at VAFB, there was a low tide at 07:52 PST at -0.03 ft (-
0.009 m)(seals could haul-out), high tide at 14:43 PST at 2.96 ft (0.9
m)(seals can not haul-out), low tide at 18:45 PST at 2.33 ft (0.7
m)(seals can not haul-out), and high tide at 01:22 PST at 4.68 feet
(1.4 m)(seals can not haul-out). Out of this period of 17.5 hours there
were only 2 low tides but only one low tide that seals would be able to
haul-out at the harbor. Some seals may leave and haul-out someplace
else or not come back until the next day. Depending on the tides, some
seals may haul-out again after the initial disturbance from the vessel.
Because the vessel operations are only for 14 hours on 1 day, it is
expected that the seals will continue to use that site as they did
during the dredging operations so there should be no cumulative impact
problems.
Mitigation and Monitoring Concerns
Comment 20: Has NMFS unilaterally determined more detailed
mitigation measures than are found in the application? If additional
information was provided to NMFS to supplement the original
application, why wasn't the application modified and the additional
information resubmitted in a more accurate and complete application?
Response: The mitigation measures proposed in the Federal Register
notice of March 4, 2002, follow mitigation NMFS has previously
incorporated into IHAs for similar activities to ensure that marine
mammal takes remain negligible. NMFS saw no reason to have such
information re-submitted by the applicant.
Comment 21: How is NMFS dealing with the unanswered question
associated with timing of harbor activities (with breeding, molting, or
pupping seasons) and the inconsistent treatment of this issue in the
mitigation plan?
Response: Harbor seals do not typically breed, molt, or pup in the
south VAFB area where Boeing will be conducting harbor activities. The
nearest pupping site is at Rocky Point, approximately 1.6 km (1 mi)
north of the project area. However, the IHA monitoring plan requires
Boeing to observe and record the age class and gender of all marine
mammals before, during, and after harbor activities in order to verify
that no breeding, molting, or pupping takes place in the project area.
Comment 22: The MMC recommends that NMFS, if it has not already
done so, assess whether the monitoring required as a condition of this
and possible future incidental harassment authorizations will be
adequate to detect possible non-negligible cumulative effects and, if
not, what additional steps need to be taken to ensure that any such
effects will be detected before they reach significant levels.
Response: NMFS believes that the monitoring requirements, along
with the requirement of all IHA holders to report their monitoring
results in a timely manner, will allow NMFS to assess the potential for
cumulative effects on marine mammals and modify the conditions of the
authorization if necessary.
Comment 23: Boeing requests that the mitigation measures proposed
by NMFS in the Federal Register on March 4, 2002 (67 FR 9702), be
modified to allow for the continuation of activities while seals are
present, as this is consistent with NMFS' conclusion that there will be
no more than a negligible impact on these marine mammals as a result of
harbor activities.
Response: NMFS concurs and has thus modified the mitigation
measures contained in the authorization to allow for continuation of
activities while seals are present. The mitigation measures still
require marine mammal monitoring during all Boeing activities in the
harbor and reporting of any possible disturbance of the harbor seals
associated with those activities.
MMPA Concerns
Comment 24: In the event of untoward impacts, injury to marine
mammals, or violations of the permit which entity is held accountable
and legally liable?
Response: In accordance with agreements signed by the Air Force and
Boeing, Boeing is responsible for payment of all fines or penalties
imposed as a result of administrative or judicial enforcement actions
or citizens' suits for violations of federal, state, or local laws or
regulations arising out of the conduct or activities related to the
agreement.
Comment 25: Does VAFB have carte-blanche authorization to perform
maintenance dredging at anytime for as long as it deems necessary?
Response: No, NMFS is not granting VAFB ``carte-blanche'' to
perform maintenance dredging anytime for as long as it deems necessary.
First, this authorization will be issued to Boeing not VAFB. And,
second, the incidental harassment authorization is only valid for 1
year and must be re-applied for annually. Boeing is responsible for re-
application and subsequent maintenance dredging.
National Environmental Policy Act (NEPA) Concerns
Comment 26: Why hasn't NMFS challenged the legal sufficiency of the
segmented actions of the NEPA analysis/documents referenced as
supporting this application when in fact the cumulative actions
(particularly those that will be conducted concurrently) in the
application are not those analyzed in the NEPA analyses/documents?
Response: Before issuance of incidental harassment authorizations
under the MMPA, NMFS must ensure that the environmental impacts of its
decision to issue or deny such authorizations are in compliance with
NEPA. A programmatic NEPA assessment conducted on the impact of NMFS'
rulemaking for the issuance of IHAs (61 FR 15884; April 10, 1996)
stated that for issuance of an IHA, NMFS must first determine that the
taking (by harassment) would not result in any serious injury or death
to a marine mammal, would have no more than a negligible impact on
marine mammals and their habitat, and would not have an unmitigable
adverse impact on the availability of the species or stock(s) for
subsistence uses. Therefore, NMFS' decision-making process for IHA
issuance or denial independently and separately analyzes factors
similar to those suggested under section 6.01 of National Oceanic and
Atmospheric Administration (NOAA) Administrative Order 216-6
(Environmental Review Procedures for Implementing the National
Environmental Policy Act, May 20, 1999) for determining the
significance of agency actions for the purposes of NEPA. On a case-by-
case basis, NMFS determines whether the issuance of an IHA will
individually or cumulatively have a significant impact on the quality
of the human environment.
NMFS has responsibility for insuring that its own actions are in
compliance with NEPA. Except in regards to how Federal actions may
impact resources protected under the MMPA, Endangered Species Act, or
other marine resource laws and regulations, NMFS has no authority over
the actions of other Federal agencies. NMFS reviewed all NEPA documents
related to Boeing's request for a marine mammal authorization and found
that these documents were sufficient to satisfy the
[[Page 36156]]
requirements of its decision-making process.
Boeing's January 28, 2001, request for an incidental harassment
authorization was specifically for the incidental and unintentional
take of marine mammals during a one-year period of harbor activities
and does not account for future maintenance dredging and other
operations in the harbor. Incidental takes of marine mammals as a
result of these future activities must be covered under subsequent
authorizations that Boeing must request and NMFS must send out for
public comment.
Endangered Species Act Concerns
Comment 27: Possible impacts to the southern sea otter population
have been overlooked and may need to be addressed. Decision on the
incidental take permit request received by NMFS should be coordinated
with U.S. Fish and Wildlife Service (FWS) officials to insure that
impacts to southern sea otters are adequately addressed. In addition,
applicants for marine mammal incidental take permits should be
encouraged to apply for consultation and permits through both agencies.
Response: Because the southern sea otter is designated threatened
under the Endangered Species Act and management authority for this
marine mammal species lies with FWS, VAFB initiated a formal Section 7
consultation with the FWS in 1998 on Boeing's harbor activities. A
Biological Opinion was written and Incidental Take Statement issued in
August 2001. Southern sea otters were discussed in these documents and
FWS recognized that Boeing will restore sea otter habitat (i.e., kelp
beds) in the vicinity of the harbor to replace kelp destroyed during
dredging. In addition, the FWS noted that VAFB has committed to a
southern sea otter monitoring program designed to detect the presence
and possible disturbance at the VAFB harbor area during dredging
activities. NMFS expects Boeing to fulfill its obligations for sea
otter habitat restoration and cooperate in VAFB's southern sea otter
monitoring program.
Description of Habitat and Marine Mammals Affected by the Activity
The only marine mammal species likely to be harassed incidental to
harbor activities at south VAFB is the Pacific harbor seal (Phoca
vitulina richardsi). The most recent estimate of the Pacific harbor
seal population in California is 30,293 seals (Forney et al., 2000).
From 1979 to 1995, the California population increased at an estimated
annual rate of 5.6 percent. The total population of harbor seals on
VAFB is now estimated to be 1,040 (775 on south VAFB) based on sighting
surveys and telemetry data (SRS Technologies 2001).
The daily haul-out behavior of harbor seals along the south VAFB
coastline is dependent on time of day rather than tide height. The
highest number of seals haul-out at south VAFB between 1100 through
1700 hours. In addition, haul-out behavior at all sites seems to be
influenced by environmental factors such as high swell, tide height,
and wind. The combination of all three may prevent seals from hauling
out at most sites. The number of seals hauled out at any site can vary
greatly from day to day based on environmental conditions. Harbor seals
occasionally haul out on rocks outside the harbor breakwater where
Boeing will be conducting wharf modification, Delta Mariner operations,
cargo loading, and dredging activities. The maximum number of seals
present during past dredging of the harbor was 23, with an average of 7
seals sighted per day. The harbor seal pupping site closest to south
VAFB harbor is at Rocky Point, approximately 1.6 kilometers (km) (1
mile, mi) north.
Several factors affect the seasonal haul-out behavior of harbor
seals including environmental conditions, reproduction, and molting.
Harbor seal numbers at VAFB begin to increase in March during the
pupping season (March to June) as females spend more time on shore
nursing pups. The number of hauled-out seals is at its highest during
the molt which occurs from May through July. During the molting season,
tagged harbor seals at VAFB increased their time spent on shore by 22.4
percent; however, all seals continued to make daily trips to sea to
forage. Molting harbor seals entering the water because of a
disturbance by a space vehicle launch or another source are not
adversely affected in their ability to molt and do not endure
thermoregulatory stress. During pupping and molting season, harbor
seals at the south VAFB sites expand into haul-out areas that are not
used the rest of the year. The number of seals hauled out begins to
decrease in August after the molt is complete and reaches the lowest
number in late fall and early winter.
Three other marine mammal species are known to occur infrequently
along the south VAFB coast during certain times of the year and are
unlikely to be harassed by Boeing's activities. These three species
are: the California sea lion (Zalophus californianus), northern
elephant seal (Mirounga angustirostris) and northern fur seal
(Callorhinus ursinus). Descriptions of the biology and local
distribution of these species can be found in the application as well
as other sources such as Stewart and Yochem (1994, 1984), Forney et al.
(2000), Koski et al. (1998), Barlow et al. (1993), Stewart and DeLong
(1995), and Lowry et al. (1992). Please refer to those documents for
information on these species.
Potential Effects of Activities on Marine Mammals
Acoustic and visual stimuli generated by the use of heavy equipment
during the wharf modifications, Delta Mariner and off-loading
operations, and dredging, as well as the increased presence of
personnel, may cause short-term disturbance to harbor seals hauled out
along the beach and rocks in the vicinity of the south VAFB harbor.
This disturbance from acoustic and visual stimuli is the principal
means of marine mammal taking associated with these activities. Based
on the measured sounds of construction equipment, such as might be used
during Boeing's activities, sound levels from all equipment drops to a
maximum level of 95 dB A-weighted within 15.2 m (50 ft) of the sources.
In contrast, the ambient background noise measured approximately 76.2 m
(250 ft) from the beach was estimated to be 35-48 dB A-weighted
(Acentech, 1998; EPA, 1971).
Pinnipeds sometimes show startle reactions when exposed to sudden
brief sounds. An acoustic stimulus with sudden onset may be analogous
to a ``looming'' visual stimulus (Hayes and Saif, 1967), which may
elicit flight away from the source (Berrens et al., 1988). The onset of
operations by a loud sound source, such as the EPT during CBC off-
loading procedures may elicit such a reaction. In addition, the
movements of cranes and dredges may represent a ``looming'' visual
stimulus to marine mammals hauled out in close proximity. Marine
mammals exposed to such acoustic and visual stimuli may either exhibit
a startle response or leave the haul-out site.
According to the MMPA, when harbor activities disrupt the
behavioral patterns of marine mammals, they are considered to be taken
by harassment. In general, if the received level of the noise stimulus
exceeds both the background (ambient) noise level and the auditory
threshold of the animals, and especially if the stimulus is novel to
them, then there may be a behavioral response. The probability and
degree of response will also depend on the season, the group
composition of the marine mammals, and the type of activity in which
they are engaged. Minor and brief responses, such as short-duration
startle or alert reactions, are not likely to result in disruption of
behavioral patterns, such
[[Page 36157]]
as migration, nursing, breeding, feeding, or sheltering (i.e., Level B
harassment) and will not cause serious injury or mortality to marine
mammals. On the other hand, startle and alert reactions accompanied by
large-scale movements, such as stampedes into the water, may have
adverse effects on individuals and would be considered a take by
harassment due to disruption of behavioral patterns. In addition, such
large-scale movements by dense aggregations of marine mammals or on
pupping sites, could potentially lead to takes by serious injury or
death. However, there is no potential for large-scale movements leading
to serious injury or mortality near the south VAFB harbor, since on
average the number of marine mammals hauled out near the site is less
than 30 and there is no pupping at nearby sites. The effects of the
harbor activities are expected to be limited to short-term startle
responses and localized behavioral changes (i.e., Level B harassment).
For a further discussion of the anticipated effects of the planned
activities on marine mammals in the area, please refer to the
application and ENSRI's 2001 Final EA. Information in the application
and referenced sources is adopted by NMFS as the best information
available on this subject.
Numbers of Marine Mammals Expected to Be Harassed
Boeing estimates that a maximum of 30 harbor seals per day may be
hauled out near the south VAFB harbor, with a daily average of 7 seals
sighted during previous dredging operations in the harbor. Using the
maximum and average number of seals hauled out per day, assuming that
half of the seals will use the site at least twice, assuming that half
of the seals hauled out will react to the activities, and using a
maximum total of 83 operating days in 2002-2003, NMFS calculates that
between 623 and 145 Pacific harbor seals may be subject to Level B
harassment, as defined in 50 CFR 216.3. Although not likely to be
present at the south VAFB harbor, NMFS is also authorizing the
incidental harassment of 10 California sea lions, 10 northern elephant
seals, and 5 northern fur seals and requires that marine mammal
monitors note the presence and behavior of these marine mammal species
in the project area.
Possible Effects of Activities on Marine Mammal Habitat
Boeing anticipates no loss or modification to the habitat used by
Pacific harbor seals that haul out near the south VAFB harbor. The
harbor seal haul-out sites near south VAFB harbor are not used as
breeding, molting, or mating sites; therefore, it is not expected that
the activities in the harbor will have any impact on the ability of
Pacific harbor seals in the area to reproduce.
Possible Effects of Activities on Subsistence Needs
There are no subsistence uses for Pacific harbor seals, California
sea lions, northern elephant seals, and northern fur seals in
California waters, and, thus, there are no anticipated effects on
subsistence needs.
Mitigation
No pinniped mortality and no significant long-term effect on the
stocks of pinnipeds hauled out near south VAFB harbor are expected
based on the relatively low levels of sound generated by the equipment
to be used during Boeing's harbor activities (maximum level of 95 dB A-
weighted within 50 ft (15.2 m)) and the relatively short time periods
over which the project will take place (totaling approximately 83
days). However, Boeing expects that the harbor activities may cause
disturbance reactions by some of the harbor seals hauled out on the
adjacent beach and rocks. To reduce the potential for disturbance from
visual and acoustic stimuli associated with the activities Boeing will
undertake the following marine mammal mitigating measures:
(1) If activities occur during nighttime hours, lighting will be
turned on before dusk and left on the entire night to avoid startling
marine mammals at night.
(2) Activities should be initiated before dusk.
(3) Construction noises must be kept constant (i.e., not
interrupted by periods of quiet in excess of 30 minutes) while marine
mammals are present.
(4) If activities cease for longer than 30 minutes and marine
mammals are in the area, start-up of activities will include a gradual
increase in noise levels.
(5) A qualified marine mammal observer will visually monitor marine
mammals on beaches and on rocks for any flushing or other behaviors as
a result of Boeing's activities.
(6) The Delta Mariner and accompanying vessels will enter the
harbor only when the tide is too high for harbor seals to haul-out on
the rocks.
(7) As alternate dredge methods are explored, the dredge contractor
may introduce quieter techniques and equipment.
Monitoring
As part of its application, Boeing provided a proposed monitoring
plan for assessing impacts to marine mammals from the activities at
south VAFB harbor and for determining when mitigation measures should
be employed.
A NMFS-approved and VAFB-designated biologically trained observer
will monitor the area for marine mammals during all harbor activities.
During nighttime activities, the harbor area will be lit and the
monitor will use a night vision scope. Monitoring activities will
consist of:
(1) Conducting baseline observation of marine mammals in the
project area prior to initiating project activities.
(2) Conducting and recording observations on harbor seals in the
vicinity of the harbor for the duration of activities occurring when
tides are low enough for harbor seals to haul out (+ 2 ft. or less).
(3) Conducting post-construction observations of marine mammal
haul-outs in the project area to determine whether animals disturbed by
the project activities return to the haul-out.
As required by the MMPA, this monitoring plan will be subject to a
review by technical experts prior to formal acceptance by NMFS.
Reporting
Boeing will notify NMFS 2 weeks prior to initiation of each
activity. After each activity is completed, Boeing will provide a
report to NMFS within 90 days. This report will provide dates and
locations of specific activities, details of marine mammal behavioral
observations, and estimates of the amount and nature of all takes of
marine mammals by harassment or in other ways. In the unanticipated
event that any cases of pinniped mortality are judged to result from
these activities, this will be reported to NMFS immediately.
Consultation
Boeing has not requested the take of any listed species nor is any
take of listed species expected. Therefore, NMFS has determined that a
section 7 consultation under the Endangered Species Act is not required
at this time.
Although sea otters are not within the jurisdiction of NMFS, VAFB
formally consulted with FWS in 1998 on the possible take of southern
sea otters during Boeing's harbor activities at south VAFB. A
Biological Opinion was written and Incidental Take Statement issued in
August 2001. Southern sea otters were discussed in these documents and
FWS recognized that Boeing will restore sea otter habitat (i.e., kelp
beds) in the vicinity of the harbor to replace kelp destroyed during
[[Page 36158]]
dredging. In addition, the FWS noted that VAFB has committed to a
southern sea otter monitoring program designed to detect the presence
and possible disturbance at the VAFB harbor area during dredging
activities.
NEPA
In accordance with section 6.01 of the National Oceanic and
Atmospheric Administration (NOAA) Administrative Order 216-6
(Environmental Review Procedures for Implementing the National
Environmental Policy Act, May 20, 1999), NMFS has analyzed both the
context and intensity of this action and determined based on a
programmatic NEPA assessment conducted on the impact of NMFS'
rulemaking for the issuance of IHAs (61 FR 15884; April 10, 1996), the
content and analysis of Boeing's request for an IHA, and the Final EA
for Harbor Activities Associated with the Delta IV Program at VAFB
(ENSRI 2001) that the proposed issuance of this IHA to Boeing by NMFS
will not individually or cumulatively result in a significant impact on
the quality of the human environment as defined in 40 CFR 1508.27.
Therefore, based on analysis of all relevant environmental documents,
this action is exempted from further environmental review and meets the
definition of a ``Categorical Exclusion'' as defined under NOAA
Administrative Order 216-6.
Determinations
NMFS has determined that the impact of harbor activities related to
the Delta IV/EELV at VAFB, including: wharf modification, transport
vessel operations, cargo movement activities, and harbor maintenance
dredging, will result, at worst, in a temporary modification in
behavior by Pacific harbor seals. California sea lions, northern
elephant seals, and northern fur seals, while not likely to occur in
the project area, may potentially experience the same temporary
modification in behavior if they wander into the project area. While
behavioral modifications may be made by these species to avoid the
resultant acoustic and visual stimuli, there is no potential for large-
scale movements, such as stampedes, since pinniped species haul out in
such small numbers near the site (maximum number of Pacific harbor
seals hauled out in one day estimated at 30 seals). The effects of the
harbor activities are expected to be limited to short-term and
localized behavioral changes. Therefore, NMFS concludes that the
effects of the planned activities will have no more than a negligible
impact on marine mammals.
Due to the localized nature of these activities, the number of
potential takings by harassment are estimated to be small. In addition,
no take by injury and/or death is anticipated, and the potential for
temporary or permanent hearing impairment is unlikely given the low
noise levels and will be entirely avoided through the incorporation of
appropriate mitigation measures. No rookeries, mating grounds, areas of
concentrated feeding, or other areas of special significance for marine
mammals occur within or near south VAFB harbor.
In summary, NMFS has determined that the proposed activity would
result in the harassment of only small numbers of harbor seals,
California sea lions, northern elephant seals, and northern fur seals;
would have no more than a negligible impact on these marine mammal
stocks; and would not have an unmitigable adverse impact on the
availability of marine mammal stocks for subsistence uses.
Authorization
NMFS has issued an IHA to Boeing for harbor activities related to
the Delta IV/EELV to take place at south Vandenberg Air Force Base, CA,
(VAFB) over a 1-year period. The issuance of this IHA is contingent
upon adherence to the previously mentioned mitigation, monitoring, and
reporting requirements.
Dated: May 15, 2002.
David Cottingham,
Deputy Office Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 02-13020 Filed 5-22-02; 8:45 am]
BILLING CODE 3510-22-S