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Taking Marine Mammals Incidental to Specified Activities; Port of Miami Construction Project (Phase II)
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 21, 2004 (Volume 69, Number 13)]
[Notices]
[Page 2899-2902]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21ja04-30]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 010604A]
Taking Marine Mammals Incidental to Specified Activities; Port of
Miami Construction Project (Phase II)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of receipt of application and proposed authorization for
an incidental take authorization; request for comments.
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SUMMARY: NMFS has received a request from the U.S. Army Corps of
Engineers-Jacksonville District (Corps) for renewal of a one-year
Incidental Harassment Authorization (IHA) to take marine mammals, by
harassment, incidental to deepening the Dodge-Lummus Island Turning
Basin in Miami, FL (Turning Basin) and an application for the
promulgation of regulations governing the incidental take of marine
mammals for the same activity over a 5-year period. Under the Marine
Mammal Protection Act (MMPA), NMFS is requesting comments on its
proposal to reissue a 1-year IHA to the Corps to incidentally take, by
harassment, bottlenose dolphins (Tursiops truncatus) as a result of
conducting this activity and the Corps' application for regulations.
DATES: Comments and information must be received no later than February
20, 2004.
ADDRESSES: Comments on the application should be addressed to Michael
Payne, Chief, Marine Mammal Conservation Division, Office of Protected
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3225.
Comments cannot be accepted if submitted via e-mail or the Internet. A
copy of the application may be obtained by writing to this address or
by telephoning the contact listed here. Publications referenced in this
[[Page 2900]]
document are available for viewing, by appointment during regular
business hours, at this address.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, (301)
713-2322, ext 128.
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 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, a notice of a proposed authorization is provided to the
public for review.
Permission may be granted if NMFS finds that the taking will have 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 takings are set forth. NMFS has defined ``negligible impact'' in
50 CFR 216.103 as ``an impact resulting from the specified activity
that cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through effects on annual rates
of recruitment or survival.''
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 IHA Request
On December 1, 2003, NMFS received a request from the Corps for a
renewal of an IHA to take bottlenose dolphins incidental to using
blasting while deepening the Turning Basin in the Port of Miami, south
of Dodge-Lummus Island. An IHA for this activity was issued to the
Corps previously on May 22, 2003 (68 FR 32016, May 29, 2003). This IHA
will expire on May 21, 2004. Since the work in the Turning Basin has
not been started at this time, a new IHA is warranted.
The Port of Miami is one of the major terminal complexes in
Florida. The majority of this tonnage is high-value general cargo
transported in trailers and containers. The Port also accommodates a
large cruise ship industry. Development has primarily centered on the
Lummus Island terminal and container complex facilities. Expanding and
deepening the Turning Basin would eliminate the need for vessels docked
at Lummus Island to back to or from the Fisher Island Turning Basin.
Completion of the dredging project may employ a hopper dredge,
clamshell dredge, cutterhead dredge and/or confined blasting. The
dredging will remove 1.4 million cubic yards of material from an area
1,500 ft (457.2 m) in diameter. The Corps proposes to contract for
dredging the Turning Basin, to a maximum depth of 42 ft (12.8 m) plus a
2 ft (0.61 m) overdepth. Material removed from the dredging will be
placed in the Miami Ocean Dredged Material Disposal Site.
The Corps expects the contractor will employ underwater dredging
and confined blasting to construct the project. Blasting has the
potential to have adverse impacts on bottlenose dolphins and manatees
(Trichechus manatus latirostris)inhabiting the area near the project.
While the Corps does not presently have a blasting plan from the
contractor, which will specifically identify the number of holes that
will be drilled, the amount of explosives that will be used for each
hole, the number of blasts per day (usually no more than 3/day), or the
number of days the construction is anticipated to take to complete, the
Corps has forwarded to NMFS a description of a completed project in San
Juan Harbor, Puerto Rico to use as an example. For that project, the
maximum weight of the explosives used for each event was 375 lbs (170
kg) and the contractors detonated explosives once or twice daily from
July 16 to September 9, for a total of 38 individual detonations.
Normal practice is for each charge to be placed approximately 5 - 10 ft
(1.5 - 3 m) deep within the rock substrate, depending on how much rock
needs to be broken and how deep a depth is sought. The charges are
placed in the holes and tamped with rock. Therefore, if the total
explosive weight needed is 375 lbs (170 kg) and they have 10 holes,
they would average 37.5 lbs (17.0 kgs)/hole. However, a more likely
weight for this project may be only 90 lbs (41 kgs) and, therefore, 9
lbs(4.1 kg)/hole. Charge weight and other determinations are expected
to be made by the Corps and the contractor approximately 30-60 days
prior to commencement of the construction project. Because the charge
weight and other information is not presently available, NMFS will
require the Corps to provide this information to NMFS, including
calculations for impact/mitigation zones (for the protection of marine
mammals and sea turtles from injury), prior to commencing work.
Summary of Request for Regulations
While the Corps was coordinating with NMFS on the application and
issuance of an IHA for the Miami Turning Basin in early 2003, the Corps
identified at least 6 additional Federal navigation projects that might
need similar MMPA authorizations within the next few years, if confined
blasting is used as a construction technique. To ensure consistency
between MMPA authorizations for these dredging projects, and efficiency
for both agencies, NMFS recommended that the Corps apply for these
authorizations under section 101(a)(5)(A) of the MMPA, instead of
individually under section 101(a)(5)(D) of the MMPA. This request was
received on December 1, 2003. At this time however, only the Miami
Turning Basin is proposed to be covered by the rulemaking. This rule,
if implemented, and Letters of Authorization (LOA) issued under that
rule, would replace the IHA process for this activity within the
Jacksonville District. Each application for an LOA for another project
within the Jacksonville District by the Corps for confined blasting
within the District would require separate informal public review and
comment, prior to issuance of an LOA. NMFS expects to start this
rulemaking in early April, 2004.
Description of the Marine Mammals Affected by the Activity
General information on marine mammal species found off the East
Coast of the United States can be found in Waring et al. (2001, 2002).
These reports are available at the following location:
http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html.
[[Page 2901]]
The only marine mammal species likely to be found in the Turning
Basin are the bottlenose dolphin and West Indian manatee. Take
authorizations for manatees are issued by the U.S. Fish and Wildlife
Service (USFWS). There is no stock assessment available concerning the
status of bottlenose dolphins in the inshore and nearshore waters off
south Florida. Additionally, while neither a status review nor peer-
reviewed reports on the status of the Biscayne Bay bottlenose dolphins
have been published, the Southeast Fisheries Science Center, NMFS, is
currently working on this report. Preliminary information indicates a
documented population of 159 bottlenose dolphins residing within the
boundaries of the Biscayne Bay area. A total of 146 bottlenose dolphins
have been resighted in the Port of Miami area at least one additional
time. These animals were often sighted within or transiting through the
Port of Miami. It is not known whether bottlenose dolphins inhabit the
Turning Basin or whether they simply use the area as a transit to North
Biscayne Bay or offshore via the main port channel. The defined stocks
of bottlenose dolphins that reside closest to the project area,
therefore, are the western North Atlantic coastal (central Florida
management unit) and offshore stocks of bottlenose dolphins with a
minimum population estimated to be 24,897 for the offshore stock.
Abundance of the coastal stock in central Florida is 10,652 in winter,
but unknown is summer. Additional assessment information for these two
stocks is available at the previously mentioned URL.
Potential Effects on Habitat
The Corps expects the effects on marine mammal habitat to be
minimal. The bottom of the basin is rock and sand, and the walls of the
Turning Basin are vertical rock. The Corps also believes that the area
of the Turning Basin may not be suitable habitat for dolphins in
Biscayne Bay. It is more likely that the animals use the area to
traverse to North Biscayne Bay or offshore via the main port channel.
In addition, as a large number of fish are not expected to perish
during the detonations, there will not be a significant effect on
dolphins' food supply (T. Jordan, pers. comm, 2002).
Potential Effects on Marine Mammals
According to the Corps, bottlenose dolphins and other marine
mammals have not been documented as being directly affected by dredging
activities and, therefore, the Corps does not anticipate any incidental
harassment of bottlenose dolphins by dredging.
Potential impacts to marine mammals from explosive detonations
could include both lethal and non-lethal injury, as well as Level B
harassment. Marine mammals may be killed or injured as a result of an
explosive detonation due to the response of air cavities in the body,
such as the lungs and bubbles in the intestines. Effects are likely to
be most severe in near surface waters where the reflected shock wave
creates a region of negative pressure called ``cavitation.''
A second possible cause of mortality is the onset of extensive lung
hemorrhage. Extensive lung hemorrhage is considered debilitating and
potentially fatal. Suffocation caused by lung hemorrhage is likely to
be the major cause of marine mammal death from underwater shock waves.
The estimated range for the onset of extensive lung hemorrhage to
marine mammals varies depending upon the animal's weight, with the
smallest mammals having the greatest potential hazard range.
NMFS' criteria for determining non-lethal injury (Level A
harassment) from explosives are the peak pressure that will result in:
(1) the onset of slight lung hemorrhage, or (2) a 50-percent
probability level for a rupture of the tympanic membrane. These are
injuries from which animals would be expected to recover on their own.
NMFS has also established dual criteria for what constitutes Level B
acoustic harassment: (1) An energy-based temporary threshold shift
(TTS) from received sound levels 182 dB re 1 microPa\2\-sec cumulative
energy flux in any 1/3 octave band above 100 Hz for odontocetes
(derived from experiments with bottlenose dolphins(Ridgway et al.,
1997; Schlundt et al., 2000); and (2) 12 psi peak pressure cited by
Ketten (1995) as associated with a safe outer limit for minimal,
recoverable auditory trauma (i.e., TTS). The Level B Harassment zone,
therefore, is the distance from the mortality/serious injury zone to
the radius where neither of these criterion is exceeded.
Mitigation and Monitoring
In the absence of acoustic measurements (due to the high cost and
complex instrumentation needed), in order to protect endangered,
threatened and protected species (manatees, dolphins, sea turtles), the
following equations have been proposed by the Corps for blasting
projects to determine zones for injury or mortality from an open water
explosion and to assist the Corps in establishing mitigation to reduce
impacts to the lowest level practicable. These equations are believed
to be conservative because they are based on humans, which are more
sensitive than dolphins (humans) and on unconfined charges while the
proposed blasts in the Turning Basin will be confined (stemmed)
charges. The equations, based on the Navy Diver Formula, are:
Caution Zone radius = 260 (lbs/delay)\1/3\
Safety Zone radius = 520 (lbs/delay)\1/3\
The Caution Zone represents the radius from the detonation beyond
which mortality is not expected from an open-water blast. The Safety
Zone is the approximate distance beyond which non-serious injury (Level
A harassment) is unlikely from an open-water explosion. These zones
will be used for implementing mitigation measures.
In the Turning Basin or any area where explosives are required to
obtain channel design depth, marine mammal/sea turtle protection
measures will be employed by the Corps. For each explosive charge, the
Corps proposes that detonation will not occur if a marine mammal is
sighted by a dedicated marine mammal/sea turtle observer within the
safety zone, a circular area around the detonation site with the
following radius: R = 520(W)1/3 (520 times the cube root of the weight
of the explosive charge in pounds) where: R = radius of the safety zone
in ft; W = weight of the explosive charge in lbs).
Although the Caution Zone is considered to be an area for potential
mortality, the Corps believes that because all explosive charges will
be stemmed (placed in a drilled hole and tamped with rock), the areas
for potential mortality and injury will be significantly smaller than
this area and, therefore, it is unlikely that even non-serious injury
would occur if, as is believed to be the case, monitoring this zone is
effective. For example, since bottlenose dolphins are commonly found on
the surface of the water, implementation of a mitigation/ monitoring
program is expected by NMFS to be close to 100 percent effective.
The Corps proposes to implement mitigation measures and a
monitoring program that will establish both caution- and safety-zone
radii to ensure that bottlenose dolphins will not be injured during
blasting and that impacts will be at the lowest level practicable.
Additional mitigation measures include: (1) confining the explosives in
a hole with drill patterns restricted to a minimum of 8 ft (2.44 m)
separation from any other loaded hole; (2)
[[Page 2902]]
restricting the hours of detonation from 2 hours after sunrise to 1 hr
before sunset to ensure adequate observation of marine mammals and sea
turtles in the safety zone; (3) staggering the detonation for each
explosive hole in order to spread the explosive's total overpressure
over time, which in turn will reduce the radius of the caution zone;
(4) capping the hole containing explosives with rock in order to reduce
the outward potential of the blast, thereby reducing the chance of
injuring a dolphin, manatee, or sea turtle; (5) matching, to the extent
possible, the energy needed in the ``work effort'' of the borehole to
the rock mass to minimize excess energy vented into the water column;
and (6) conducting a marine mammal/sea turtle watch with no less than
two qualified observers from a small water craft and/or an elevated
platform on the explosives barge, at least 30 minutes before and
continue for 30 minutes after each detonation to ensure that there are
no dolphins or sea turtles in the area at the time of detonation.
The observer monitoring program will take place in a circular area
at least three times the radius of the above described Caution Zone
(called the watch zone). Any marine mammal(s) in the caution, safety,
or watch zones will not be forced to move out of those zones by human
intervention. Detonation shall not occur until the animal(s) move(s)
out of the safety zone on its own volition.
Reporting
NMFS proposes to require the Corps to submit a report of activities
120 days before the expiration of the proposed IHA if the proposed work
has started. This report will include the status of the work being
undertaken, marine mammals sighted during the monitoring period, any
behavioral observations made on bottlenose dolphins and any delays in
detonation due to marine mammals or sea turtles being within the safety
zone.
In the unlikely event a marine mammal or marine turtle is injured
or killed during blasting, the Contractor shall immediately notify the
NMFS Regional Office.
Endangered Species Act
Under section 7 of the ESA, the Corps completed consultation with
NOAA Fisheries on September 23, 2002 and with the USFWS on June 19,
2002 for this project. Both agencies concurred with the Corps that
activities associated with the Corps' dredging project in the Dodge-
Lummus Island Turning Basin were not likely to adversely affect listed
species.
National Environmental Policy Act
The Corps prepared an Final Environmental Impact Statement (FEIS)
in 1989 for the Navigation Study for the Miami Harbor Channel. A copy
of this document is available upon request (see ADDRESSES). NMFS is
reviewing this FEIS in relation to the Corps' application and will
determine the appropriate action to take under NEPA prior to making a
determination on the issuance of an IHA.
Preliminary Conclusions
NMFS has preliminarily determined that the Corps' proposed action,
including mitigation measures to protect marine mammals, should result,
at worst, in the temporary modification in behavior by bottlenose
dolphins, including temporarily vacating the area to avoid the blasting
activity and the potential for minor visual and acoustic disturbance
from dredging and detonations. This action is expected to have a
negligible impact on the affected species or stocks of marine mammals.
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 described in this document.
Proposed Authorization
NMFS proposes to reissue an IHA to the Corps for the potential
harassment of small numbers of bottlenose dolphins incidental to
deepening the Dodge-Lummus Island Turning Basin in Miami, FL (Turning
Basin), provided the previously mentioned mitigation, monitoring, and
reporting requirements are incorporated. NMFS has preliminarily
determined that the proposed activity would result in the harassment of
only small numbers of bottlenose dolphins and will have no more than a
negligible impact on this marine mammal stock.
Information Solicited
NMFS requests interested persons to submit comments and information
concerning this proposed IHA and the application for regulations
request (see ADDRESSES).
Dated: January 14, 2004.
Donna Wieting,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 04-1216 Filed 1-20-04; 8:45 am]
BILLING CODE 3510-22-S