Small Takes of Marine Mammals Incidental to Specified Activities

DEPARTMENT OF COMMERCE

[I.D. 101994A]

Small Takes of Marine Mammals Incidental to Specified Activities

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of receipt of application and proposed authorization for

a small take exemption; request for comments.

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SUMMARY: NMFS has received a request from the Washington State

Department of Corrections (WDOC) for authorization to take small

numbers of harbor seals by harassment incidental to the nonexplosive

demolition of the Still Harbor Dock Facility on McNeil Island in

southern Puget Sound. Under section 101(a)(5)(D) of the Marine Mammal

Protection Act (MMPA), NMFS is requesting comments on its proposal to

authorize the WDOC to incidentally take by harassment a small number of

harbor seals in the vicinity of Gertrude Island for a period of 1 year,

provided certain mitigation measures are incorporated into the project.

DATES: Comments and information must be received no later than December

8, 1994.

ADDRESSES: Comments on the application should be addressed to Dr.

William W. Fox, Jr., Director, Office of Protected Resources, National

Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD

20910. A copy of the application and the Environmental Assessment (EA)

may be obtained by writing to this address or by telephoning one of the

contacts listed below.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, Office of

Protected Resources at 301-713-2055, or Brent Norberg, Northwest

Regional Office at 206-526-6733.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs

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 regulations are

issued.

Permission may be granted if the Secretary finds that the taking

will have a negligible impact on the species or stock(s); will not have

an unmitigable adverse impact on the availability of the species or

stock(s) for subsistence uses; and the permissible methods of taking

and requirements pertaining to the monitoring and reporting of such

taking are set forth.

On April 30, 1994, the President signed Public Law 103-238, the

Marine Mammal Protection Act Amendments of 1994. One part of this law

added a new subsection 101(a)(5)(D) to the MMPA to establish 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 (a) has the

potential to injure a marine mammal or marine mammal stock in the

wild; or (b) 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.

New 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.

Background of Request

The Still Harbor Dock Facility is utilized by the WDOC as a foul

weather landing facility for the McNeil Island Corrections Center.\1\

Significant deterioration of the existing facility, including the

collapse on May 24, 1994, of the steel-pile-supported concrete center

portion of the facility, has resulted in the need for major renovation

in order to maintain a safe, functional facility. The renovation will

include demolition of the existing facility; construction of a new

pile-supported concrete access trestle approximately 520 ft long by 20

ft wide and pierhead 165 ft long by 35 ft wide; a new 70 ft long by 30

ft wide concrete float with gangway and steel guide pile system; a new

50 ft long by 48 ft wide boathouse and concrete floats with gangway and

steel guide pile system; and new waterlines, electrical power, and

lighting. All new structures will be constructed within the footprint

of the existing facility. Approximately 525 steel and timber pilings

will be removed and replaced with approximately 152 new concrete,

steel, and plastic piles. Additional information on the dock facility

and the corrections center in general can be obtained by referring to

the Final Environmental Impact Statement published by the WDOC in 1989

in compliance with the State Environmental Policy Act of 1971 (Chapter

43.21C, Revised Code of Washington).

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\1\The Quitclaim Deed which transferred the property from

Federal to state control, limits the use of the Still Harbor Dock to

emergency situations because of the Gertrude Island harbor seal

population.

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Summary of Request

On August 18, 1994, the WDOC applied for an authorization under

section 101(a)(5)(D) of the MMPA, for the take of a small number of

harbor seals by harassment incidental to the demolition of the existing

dock facility and the driving of approximately 152 concrete, plastic,

and steel piles (90 concrete, 40 plastic, and 22 steel) of the Still

Harbor Dock Facility on McNeil Island in southern Puget Sound, WA. In

an effort to minimize noise from these activities, no explosives will

be used for demolition and each concrete and plastic pile will be water

jetted several feet into the substrate, then driven the final 3 ft into

the set position. The 22 steel piles must be driven the entire depth

(30 ft) to meet load requirements. The dock removal and construction

schedules were developed to avoid reproductively sensitive life history

periods of several species of wildlife, including harbor seals. The

demolition and pile driving activities are anticipated to be completed

in two season's specified work window from November 1 to February 15,

1994-95, for demolition and November 15 to February 15, 1995-96, for

pile driving. However, because an authorization issued under section

101(a)(5)(D) of the MMPA is limited to a maximum of 1 year, a second

application from the WDOC will be necessary to commence pile driving

and construction of the dock facility. Therefore, this small take

authorization, if granted, will only cover the demolition of the

collapsed portion of the existing pier facility.

Alternatives to the Proposed Action

No alternative options for the foul weather dock and moorage have

been identified by the WDOC for McNeil Island. Without the availability

of the foul weather dock, prisoners, visitors, staff and supplies would

be unable to land on the island until the weather cleared. In addition,

management of McNeil Island by the state as a wildlife preserve and

sanctuary prohibits any new road construction for an alternative dock

location under the Wildlife Restriction terms in the Quitclaim Deed of

the property.

Harbor Seals

The harbor seal (Phoca vitulina) is the only marine mammal species

anticipated to be taken by the demolition of the Still Harbor Dock

Facility. Gertrude Island is a low-tide, haulout, and rookery used by

harbor seals of various ages. The southern part of the island is

located approximately 1,100 ft from the Dock. The type of taking

anticipated will be incidental harassment caused by the noise of

demolition work. It is anticipated that the seals may be disturbed upon

initiation of demolition activities on a daily basis, until they become

acclimated to the activity. The number of seals disturbed will vary

with tidal elevation at the time of initiation of the activity and is

anticipated to be a subset of the peak total counts.

Harbor seals are the most abundant pinniped in Washington State.

Since passage of the MMPA in 1972, harbor seal populations in the

inland waters of Washington have increased significantly. From 1983 to

1992, the Washington inland waters stock of harbor seals increased at

an annual rate of 6.1 percent (NMFS, 1994; Huber et al., in prep.).\2\

Boveng (1988) and NMFS (1991) estimated the minimum harbor seal

population for the state's inland waters to be 6,062. More recently,

NMFS (1994) estimates the inland population at 13,833 giving it a

minimum population size estimate of 13,053. Puget Sound pup counts

numbered 35 in 1977 and showed a +.22 annual rate of change to 142 pups

in 1984 (NMFS, 1992). South Puget Sound pup counts are presently

increasing at a +.58 annually from 365 total (25 pups) in 1984 to 706

total (78 pups) in 1992 (NMFS data). Harbor seals occupy all nearshore

areas of Puget Sound, including McNeil and Gertrude Islands throughout

the year. Current data from the Washington Department of Fish and

Wildlife (WDFW) and NMFS on Gertrude Island total seal counts over the

last 5 years (1988-1993) indicate peak use in September and the lowest

use in February. The most current data on maximum numbers of harbor

seals using the Gertrude Island haulout during the demolition work

window varies from 215 to 634, depending on the month (NMFS data).

Seasonal increases at Gertrude Island have been ascribed to the onset

of pupping and molting seasons, and a movement of seals from other

haulout sites as disturbances increase during the summer (Jones and

Stokes, 1989). The pupping season for the Gertrude Island herd extends

from late July to late September, and the molting season extends from

early October to early December (Newby, 1971; Skidmore and Babson,

1981- both as cited in Jones and Stokes, 1989).

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\2\Reference citations can be found in the EA on this action

(see ADDRESSES).

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The impact to the harbor seal stock would be disturbance by sound

which is anticipated to result in a negligible short-term impact to

small numbers of harbor seals. When harbor seals are frightened by

noise, or the approach of a boat, plane, human, or other potential

predator, the seals will move rapidly to the relative safety of the

waters. Depending upon the severity of the disturbance, seals may

return to the original haulout site immediately, stay in the water for

some length of time before hauling out, or haul out in a different area

(Johnson, 1977; Skidmore and Babson, 1981 both as cited in Jones and

Stokes, 1989). Disturbances tend to have a more serious effect when

herds are pupping or nursing, when aggregations are dense, and during

the molting season (Jones and Stokes, 1989).

Short-term impact of the activities is expected to result in a

temporary reduction in utilization of the haulout while work is in

progress or until the seals acclimate to the disturbance. The specific

activities will not result in any reduction in the number of seals, and

they are expected to continue to occupy the same area of Gertrude

Island. The abandonment of Gertrude Island as a harbor seal haulout and

rookery is not anticipated due to the existing level of human activity

on and around the dock for over 50 years (Jones and Stokes, 1989).

Human activity increases annually in the late fall and winter months as

use of the dock facility increases as a foul weather moorage for WDOC

passenger ferries, barges, tugboats, and patrol boats.

In addition, the activities are anticipated to have no long-term

impact on the habitat of harbor seals. No direct physical impact to the

habitat will occur due to the dock reconstruction as all new facilities

will occur within the footprint of the original structure. Mitigation

measures (discussed below) under an MMPA Incidental Harassment

Authorization are expected to reduce any impacts to a negligible level.

There has been no known subsistence use of the McNeil Island area

or Gertrude Island.

Mitigation

Efforts to ensure negligible impact of the dock renovation project

on harbor seals identified by the WDOC and proposed for inclusion in

the Incidental Harassment Authorization include:

1. A November 1--February 15 work schedule to avoid adversely

affecting harbor seals during the pupping and nursing season (July 15

to October 15);

2. A 1,000-ft no-entry buffer zone around Gertrude Island to

minimize the impact of vessel traffic on harbor seals during the

project (the buffer zone will be delineated by floats);

3. Construction activities and seal behavior will be monitored by

marine biologists to ensure that impacts on seals will be minimal;

4. The demolition will not utilize any explosives;

5. The removal of material and debris will be in the largest sizes

possible and the removed materials will be transported off site for

disposal; and

6. To mitigate noise levels and thereby impacts to harbor seals,

all construction equipment should comply as much as possible with

applicable equipment noise standards of the U.S. Environmental

Protection Agency (EPA, 1974) and all construction equipment should

have noise control devices (e.g., mufflers) no less effective than

those provided on the original equipment.

Monitoring

The Gertrude Island haulout has been the site of several research

projects for a number of years. Current research efforts by NMFS and

WDFW include a radio tag study to learn about feeding behavior of the

seals. A cooperative monitoring program by NMFS and WDFW is presently

under discussion; alternatively, WDOC may contract with a private

contractor to monitor activities. In addition, NMFS proposes to require

WDOC to notify the Agency and the WDFW prior to work in order to

coordinate monitoring of potential disturbance to seals.

Proposed Authorization

NMFS proposes to issue an incidental harassment authorization for 1

year for the demolition of the collapsed portion of the Still Harbor

Dock Facility located on McNeil Island in the State of Washington,

provided the above mentioned mitigation measures and reporting

requirements are incorporated. NMFS has preliminarily determined that

the demolition of the Still Harbor Dock Facility would result in the

harassment taking of only small numbers of harbor seals, will have a

negligible impact on the harbor seal stock and will not have an

unmitigable adverse impact on the availability of this stock for

subsistence uses.

Information Solicited

NMFS requests interested persons to submit comments, information,

and suggestions concerning this request.

Dated: November 1, 1994.

William W. Fox, Jr.,

Director, Office of Protected Resources, National Marine Fisheries

Service.

[FR Doc. 94-27654 Filed 11-7-94; 8:45 am]

BILLING CODE 3510-22-W