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Taking of Marine Mammals Incidental to Specified Activities; Construction of the East Span of the San Francisco-Oakland Bay Bridge
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 12, 2005 (Volume 70, Number 8)]
[Notices]
[Page 2123-2127]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja05-51]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 092704B]
Taking of Marine Mammals Incidental to Specified Activities;
Construction of the East Span of the San Francisco-Oakland Bay Bridge
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of issuance of an incidental harassment authorization.
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SUMMARY: In accordance with provisions of the Marine Mammal Protection
Act (MMPA) as amended, notification is hereby given that an Incidental
Harassment Authorization (IHA) has been issued to the California
Department of Transportation (CALTRANS) to take small numbers of
California sea lions, Pacific harbor seals, and gray whales, by
harassment, incidental to construction of a replacement bridge for the
East Span of the San Francisco-Oakland Bay Bridge (SF-OBB) in California.
DATES: This authorization is effective from January 3, 2005, until
January 3, 2006.
ADDRESSES: A copy of the application, IHA, and/or a list of references
used in this document may be obtained by writing to Steve Leathery,
Chief, Permits, Conservation and Education Division, Office of
Protected Resources, National Marine Fisheries Service, 1315
[[Page 2124]]
East-West Highway, Silver Spring, MD 20910-3225.
FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, NMFS, (301) 713-
2289, ext 128, or Monica DeAngelis, NMFS, (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 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 may be granted if NMFS finds that the taking 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.''
Section 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 with respect to certain activities 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].
Section 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 September 1, 2004, NMFS received a request from CALTRANS
requesting renewal of an IHA for the possible harassment of small
numbers of California sea lions (Zalophus californianus), Pacific
harbor seals (Phoca vitulina richardsii), and gray whales (Eschrichtius
robustus) incidental to construction of a replacement bridge for the
East Span of the SF-OBB, in San Francisco Bay (SFB or the Bay),
California. An IHA was issued to CALTRANS for this activity on November
9, 2003, and expired on November 9, 2004. Background information on the
issuance of this IHA was published in the Federal Register on November
14, 2003 (68 FR 64595). Minor modifications to the IHA were made on
June 28, 2004 in response to a request by CALTRANS. These modifications
were limited to clarifications of, and corrections on, the terminology
and conditions in the IHA.
A detailed description of the SF-OBB project was provided in the
November 14, 2003 (68 FR 64595), Federal Register notice and is not
repeated here.
Comments and Responses
A notice of receipt and request for 30-day public comment on the
application and proposed authorization was published on October 20,
2004 (69 FR 61652). During the 30-day public comment period, no
comments were received on this action.
Description of the Marine Mammals Potentially Affected by the Activity
General information on the marine mammal species found in
California waters can be found in Caretta et al. (2004), which is
available at the following URL: http://www.nmfs.noaa.gov/prot_res/PR2/
Stock_Assessment_Program/sars.html. 
Refer to that document for
information on these species.
The marine mammals most likely to be found in the SF-OBB area are
the California sea lion and Pacific harbor seal. From December through
May gray whales may also be present in the SF-OBB area. Information on
these 3 species was provided in the November 14, 2003 (68 FR 64595),
Federal Register notice and is not repeated here.
Potential Effects on Marine Mammals and Their Habitat
CALTRANS and NMFS have determined that open-water pile driving, as
outlined in the project description, has the potential to result in
behavioral harassment of California sea lions, Pacific harbor seals,
and gray whales that may be swimming, foraging, or resting in the
project vicinity while pile driving is being conducted. Pile driving
could potentially harass those few pinnipeds that are in the water
close to the project site, whether their heads are above or below the
surface.
Based on airborne noise levels measured and on-site monitoring
conducted during 2004 under the current IHA, noise levels from the East
Span project are not resulting in the harassment of harbor seals hauled
out on Yerba Buena Island. Also, noise levels from the East Span
project are not expected to result in harassment of the sea lions
hauled out at Pier 39 as airborne and waterborne sound pressure levels
(SPLs) would attenuate to below harassment levels by the time they
reach that haul-out site, 5.7 kilometers (3.5 miles) from the project site.
For reasons provided in greater detail in NMFS' November 14, 2003
(68 FR 64595) Federal Register notice and in CALTRANS' June 2004 annual
monitoring report, the East Span Project is resulting in only small
numbers of pinnipeds being harassed (through June 2004, the biological
observers indicated that no pinnipeds had been harassed as a result of
East Span construction) and, therefore, is not expected to result in
more than a negligible impact on marine mammal stocks and will not have
a significant impact on their habitat. Short-term impacts to habitat
may include minimal disturbance of the sediment where the channels are
dredged for barge access and where individual bridge piers are
constructed. Long-term impacts to marine mammal habitat will be limited
to the footprint of the piles and the obstruction they will create
following installation. However, this impact is not considered
significant as the marine mammals can easily swim around the piles of
the new bridge, as they currently swim around the existing bridge piers.
Mitigation
The following mitigation measures are currently required under the
IHA to reduce impacts to marine mammals to the lowest extent
practicable. NMFS is requiring these mitigation measures to be carried
out under the new IHA.
Barrier Systems
An air bubble curtain system is required to be used only when
driving the permanent open-water piles. While the bubble curtain is
required specifically as a method to reduce impacts to endangered and
threatened fish species in SFB, it may also provide some benefit for
marine mammals. The NMFS' Biological Opinion and the California
Department of Fish and
[[Page 2125]]
Game's (CDFG) 2081 Incidental Take Permit also allow for the use of
other equally effective methods, such as cofferdams, as an alternative
to the air bubble curtain system to attenuate the effects of sound
pressure waves on fish during driving of permanent in-Bay piles (NMFS
2001; CDFG, 2001). Piers E-16 through E-7 for both the eastbound and
westbound structures of the Skyway will be surrounded by sheet-pile
cofferdams, which will be de-watered before the start of pile driving.
De-watered cofferdams are generally effective sound attenuation
devices. For Piers E3 through E6 of the Skyway and Piers 1 and E2 of
the Self-Anchored Suspension span, it is anticipated that cofferdams
will not be used: therefore, a bubble curtain will surround the piles.
Sound Attenuation
As a result of the determinations made during the Pile Installation
Demonstration Project (PIDP) restrike and the investigation at the
Benicia-Martinez Bridge, NMFS determined in 2003 that CALTRANS must
install an air bubble curtain for pile driving for the open-water piles
without cofferdams located at the SF-OBB. This air bubble curtain
system consists of concentric layers of perforated aeration pipes
stacked vertically and spaced no more than five vertical meters apart
in all tide conditions. The minimum number of layers must be in
accordance with water depth at the subject pile: 0-< 5 m = 2 layers
(1263 cfm); 5-< 10 m = 4 layers (2526 cfm), 10-< 15 m = 7 layers (4420
cfm); 15-< 20 m = 10 layers (6314 cfm); 20-< 25 m= 13 layers (8208 cfm).
The lowest layer of perforated aeration pipes must be designed to
ensure contact at all times and tidal conditions with the mudline
without sinking into the bay mud. Pipes in any layer must be arranged
in a geometric pattern, which will allow for the pile driving operation
to be completely enclosed by bubbles for the full depth of the water
column.
To provide a uniform bubble flux, each aeration pipe must have four
adjacent rows of air holes along the pipe. Air holes must be 1.6-mm
diameter and spaced approximately 20 mm apart. The bubble curtain
system will provide a bubble flux of at least two cubic meters per
minute, per linear meter of pipeline in each layer. Air holes must be
placed in 4 adjacent rows.
The air bubble curtain system must be composed of the following:
(1) an air compressor(s), (2) supply lines to deliver the air, (3)
distribution manifolds or headers, (4) perforated aeration pipes, and
(5) a frame. The frame facilitates transport and placement of the
system, keeps the aeration pipes stable, and provides ballast to
counteract the buoyancy of the aeration pipes in operation. Meters are
required to monitor the operation of the bubble curtain system.
Pressure meters will be installed and monitored at all inlets to
aeration pipelines and at points of lowest pressure in each branch of
the aeration pipeline. If the pressure or flow rate in any meter falls
below 90 percent of its operating value, the contractor will cease pile
driving operations until the problem is corrected and the system is
tested to the satisfaction of the CALTRANS resident engineer.
Establishment of Safety/Buffer Zones
A safety zone is to be established and monitored to include all
areas where the underwater SPLs are anticipated to equal or exceed 190
dB re 1 mPa RMS (impulse) for pinnipeds. Also, a 180-dB re 1 mPa RMS
(impulse) safety zone for gray whales must be established for pile
driving occurring during the gray whale migration season from December
through May. Prior to commencement of any pile driving, a preliminary
500-m (1,640-ft) radius safety zone for pinnipeds (California sea lions
and Pacific harbor seals) will be established around the pile driving
site, as it was for the PIDP. Once pile driving begins, either new
safety zones can be established for the 500 kJ and 1700 kJ hammers or
the 500 m (1,640 ft) safety zone can be retained. If new safety zones
are established based on SPL measurements, NMFS requires that each new
safety zone be based on the most conservative measurement (i.e., the
largest safety zone configuration). SPLs will be recorded at the 500-m
(1,640-ft) contour. The safety zone radius for pinnipeds will then be
enlarged or reduced, depending on the actual recorded SPLs.
Observers on boats will survey the safety zone to ensure that no
marine mammals are seen within the zone before pile driving of a pile
segment begins. If marine mammals are found within the safety zone,
pile driving of the segment will be delayed until they move out of the
area. If a marine mammal is seen above water and then dives below, the
contractor will wait at least 15 minutes, and if no marine mammals are
seen by the observer in that time it may be assumed that the animal has
moved beyond the safety zone. This 15-minute criterion is based on
scientific evidence that harbor seals in SFB dive for a mean time of
0.50 minutes to 3.33 minutes (Harvey and Torok, 1994). However, due to
the limitations of monitoring from a boat, there can be no assurance
that the zone will be devoid of all marine mammals at all times.
Once the pile driving of a segment begins it cannot be stopped
until that segment has reached its predetermined depth due to the
nature of the sediments underlying the Bay. If pile driving stops and
then resumes, it would potentially have to occur for a longer time and
at increased energy levels. In sum, this would simply amplify impacts
to marine mammals, as they would endure potentially higher SPLs for
longer periods of time. Pile segment lengths and wall thickness have
been specially designed so that when work is stopped between segments
(but not during a single segment), the pile tip is never resting in
highly resistant sediment layers. Therefore, because of this
operational situation, if seals or sea lions enter the safety zone
after pile driving of a segment has begun, pile driving will continue
and marine mammal observers will monitor and record marine mammal
numbers and behavior. However, if pile driving of a segment ceases for
30 minutes or more and a marine mammal is sighted within the designated
safety zone prior to commencement of pile driving, the observer(s) must
notify the Resident Engineer (or other authorized individual)
immediately and follow the mitigation requirements as outlined
previously in this document.
Soft Start
Although marine mammals will be protected from Level A harassment
by establishment of an air-bubble curtain and marine mammal observers
monitoring a 190-dB safety zone for pinipeds and 180-dB safety zone for
gray whales, mitigation may not be 100 percent effective at all times
in locating marine mammals. Therefore, in order to provide additional
protection to marine mammals near the project area by allowing marine
mammals to vacate the area prior to receiving a potential injury,
CALTRANS will also ``soft start'' the hammer prior to operating at full
capacity. CALTRANS typically implements a ``soft start'' with several
initial hammer strikes at less than full capacity (i.e., approximately
40-60 percent energy levels) with no less than a 1- minute interval
between each strike. Similar levels of noise reduction are expected
underwater. Therefore, the contractor will initiate hammering of both
the 500-kJ and the 1,700-kJ hammers with this procedure in order to
allow pinnipeds in the area to voluntarily move from the area which
should expose fewer animals to loud sounds both underwater and above
water noise. This would also ensure that
[[Page 2126]]
any pinnipeds that are missed during safety zone monitoring will not be
injured.
Compliance with Equipment Noise Standards
To mitigate noise levels and, therefore, impacts to California sea
lions, Pacific harbor seals, and gray whales, all construction
equipment will comply as much as possible with applicable equipment
noise standards of the U.S. Environmental Protection Agency, and all
construction equipment will have noise control devices no less
effective than those provided on the original equipment.
Monitoring
Since the start of the large-diameter pile driving in the Bay
nearly two years ago, CALTRANS has completed pile driving of 105 piles
inside cofferdams and 39 piles in open water (with the use of a bubble
curtain) for a total of 144 piles. Monitoring teams were on-site for
all open water pile driving and during driving of ``tops'' (last
section of the piles, which drives the pile deeper into the substrate)
inside cofferdams where underwater SPLs reached 190 dB or greater.
During 76 days of monitoring, both within and outside the marine mammal
safety zone, a single startle behavior from a California sea lion was
observed.
The following monitoring measures are required under the IHA to
reduce impacts to marine mammals to the lowest extent practicable.
Visual Oservations
The area-wide baseline monitoring and the aerial photo survey to
estimate the fraction of pinnipeds that might be missed by visual
monitoring have been completed under the current IHA and do not need to
be continued.
Safety zone monitoring will be conducted during driving of all
open-water, permanent piles without cofferdams and with cofferdams when
underwater SPLs reach 190 dB RMS or greater. Monitoring of the pinniped
and cetacean safety zones will be conducted by a minimum of three
qualified NMFS-approved observers for each safety zone. One three-
observer team will be required for the safety zones around each pile
driving site, so that multiple teams will be required if pile driving
is occurring at multiple locations at the same time. The observers will
begin monitoring at least 30 minutes prior to startup of the pile
driving. Observers will most likely conduct the monitoring from small
boats, as observations from a higher vantage point (such as the SF-OBB)
is not practical. Pile driving will not begin until the safety zone is
clear of marine mammals. However, as described in the Mitigation
section, once pile driving of a segment begins, operations will
continue uninterrupted until the segment has reached its predetermined
depth. However, if pile driving of a segment ceases for 30 minutes or
more and a marine mammal is sighted within the designated safety zone
prior to commencement of pile driving, the observer(s) must notify the
Resident Engineer (or other authorized individual) immediately and
follow the mitigation requirements as outlined previously (see
Mitigation). Monitoring will continue through the pile driving period
and will end approximately 30 minutes after pile driving has been
completed. When necessary, biological observations will be made using
binoculars during daylight hours.
In addition to monitoring from boats, during open-water pile
driving, monitoring at one control site (harbor seal haul-out sites and
the waters surrounding such sites not impacted by the East Span
Project's pile driving activities, i.e., Mowry Slough) will be
designated and monitored for comparison. Monitoring will be conducted
twice a week at the control site whenever open-water pile driving is
being conducted. Data on all observations will be recorded and will
include items such as species, numbers, behavior, details of any
observed disturbances, time of observation, location, and weather. The
reactions of marine mammals will be recorded based on the following
classifications that are consistent with the Richmond Bridge Harbor
Seal survey methodology (for information on the Richmond Bridge
authorization, see 68 FR 66076, November 25, 2003): (1) No response,
(2) head alert (looks toward the source of disturbance), (3) approach
water (but not leave), and (4) flush (leaves haul-out site). The number
of marine mammals under each disturbance reaction will be recorded, as
well as the time when seals re-haul after a flush.
Acoustical Observations
Airborne noise level measurements have been completed and
underwater environmental noise levels will continue to be measured as
part of the East Span Project. The purpose of the underwater sound
monitoring is to establish the safety zone of 190 dB re 1 micro-Pa RMS
(impulse) for pinnipeds and the safety zone of 180 dB re 1 micro-Pa RMS
(impulse) for gray whales. Monitoring will be conducted during the
driving of the last half (deepest pile segment) for any given open-
water pile. One pile in every other pair of pier groups will be
monitored. One reference location will be established at a distance of
100 m (328 ft) from the pile driving. Sound measurements will be taken
at the reference location at two depths (a depth near the mid-water
column and a depth near the bottom of the water column but at least 1 m
(3 ft) above the bottom) during the driving of the last half (deepest
pile segment) for any given pile. Two additional in-water spot
measurements will be conducted at appropriate depths (near mid water
column), generally 500 m (1,640 ft) in two directions (either west,
east, south or north) of the pile driving site and at the same two
depths as the reference location measurements. In cases where such
measurements cannot be obtained due to obstruction by land mass,
structures or navigational hazards, measurements will be conducted at
alternate spot measurement locations. Measurements will be made at
other locations either nearer or farther as necessary to establish the
approximate distance for the safety zones. Each measuring system shall
consist of a hydrophone with an appropriate signal conditioning
connected to a sound level meter and an instrument grade digital
audiotape recorder. Overall SPLs shall be measured and reported in the
field in dB re 1 micro-Pa RMS (impulse). An infrared range finder will
be used to determine distance from the monitoring location to the pile.
The recorded data will be analyzed to determine the amplitude, time
history and frequency content of the impulse.
Reporting
Under the previous IHA, CALTRANS submitted weekly marine mammal
monitoring reports and in June, 2004, CALTRANS submitted its Marine
Mammal and Acoustic Monitoring for the Eastbound Structure. This annual
report is available by contacting NMFS (see ADDRESSES) or on the Web at
http://biomitigation.org.
Under the 2005 IHA, coordination with NMFS will occur on a weekly
basis, or more often as necessary. During periods with open-water pile
driving activity, weekly monitoring reports will be made available to
NMFS and the public at http://biomitigation.org. These
weekly reports will include a summary of the previous week's monitoring
activities and an estimate of the number of seals and sea lions that may
have been disturbed as a result of pile driving activities.
In addition, CALTRANS will provide NMFS' Southwest Regional
Administrator with a draft final report within 90 days after completion
of the
[[Page 2127]]
westbound Skyway contract and 90 days after completion of the
Suspension Span foundations contract. This report should detail the
monitoring protocol, summarize the data recorded during monitoring, and
estimate the number of marine mammals that may have been harassed due
to pile driving. If comments are received from the Regional
Administrator on the draft final report, a final report must be
submitted to NMFS within 30 days thereafter. If no comments are
received from NMFS, the draft final report will be considered to be the
final report.
National Environmental Policy Act (NEPA)
In November, 2003, NMFS prepared an Environmental Assessment (EA)
and, on November 4, 2003 made a Finding of No Significant Impact
(FONSI). Therefore, preparation of an environmental impact statement on
this action is not required. A copy of the EA and FONSI are available
upon request (see ADDRESSES).
Endangered Species Act (ESA)
On October 30, 2001, NMFS completed consultation under section 7 of
the ESA with the Federal Highway Administration (FHWA) on the CALTRANS'
construction of a replacement bridge for the East Span of the SF-OBB in
California. The finding contained in the Biological Opinion was that
the CALTRANS action at the East Span of the SF-OBB is not likely to
jeopardize the continued existence of listed anadromous salmonids, or
result in the destruction or adverse modification of designated
critical habitat for these species. Listed marine mammals are not
expected to be in the area of the action and thus would not be
affected. The issuance of this IHA to CALTRANS constitutes an agency
action that authorizes an activity that may affect ESA-listed species
and, therefore, is subject to section 7 of the ESA. However, as the
effects of the underlying activities on listed salmonids were analyzed
during a formal consultation between the FHWA and NMFS, and as the
underlying action has not changed from that considered in the
consultation, the discussion of effects that are contained in the
Biological Opinion issued to the FHWA on October 30, 2001, pertains
also to this action. In conclusion, NMFS has determined that issuance
of an IHA for this activity does not lead to any effects to listed
species apart from those that were considered in the consultation on
FHWA's action.
Determinations
For the reasons discussed in this document and in previously
identified supporting documents, NMFS has determined that the impact of
pile driving and other activities associated with construction of the
East Span Project should result, at worst, in the Level B harassment of
small numbers of California sea lions, Pacific harbor seals and
potentially gray whales that inhabit or visit SFB in general and the
vicinity of the SF-OBB in particular. While behavioral modifications,
including temporarily vacating the area around the construction site,
may be made by these species to avoid the resultant visual and acoustic
disturbance, the availability of alternate areas within SFB and haul-
out sites (including pupping sites) and feeding areas within the Bay
has led NMFS to preliminarily determine that this action will have a
negligible impact on California sea lion, Pacific harbor seal, and gray
whale populations along the California coast.
In addition, no take by Level A harassment (injury) or death is
anticipated and harassment takes should 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 issued an IHA for a
1-year period, for the potential incidental harassment of small numbers
of harbor seals, California sea lions and California gray whales
incidental to construction of a replacement bridge for the East Span of
the San Franciso-Oakland Bay Bridge in California, provided the
previously mentioned mitigation, monitoring, and reporting requirements
are incorporated. NMFS has determined that the construction activity
would result in the harassment of only small numbers of harbor seals,
California sea lions and possibly California gray whales and will have
no more than a negligible impact on these marine mammal stocks.
Dated: January 3, 2005.
Donna Wieting,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 05-624 Filed 1-11-05; 8:45 am]
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