Small Takes of Marine Mammals Incidental to Specified Activities; Haro Strait Oceanographic Experiment

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 051496A]

Small Takes of Marine Mammals Incidental to Specified Activities;

Haro Strait Oceanographic Experiment

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 to take small numbers of marine mammals by

harassment incidental to conducting a physical oceanography experiment

in Haro Strait, Puget Sound, WA has been issued jointly to Prof. Henrik

Schmidt of the Department of Ocean Engineering, and Mr. Patrick Miller

of the Department of Biology, Massachusetts Institute of Technology

(MIT), Cambridge, MA.

EFFECTIVE DATE: This authorization is effective from June 10, 1996, to

July 5, 1996.

ADDRESSES: The application, authorization, and environmental assessment

(EA) are available from the following office: Marine Mammal Division,

Office of Protected Resources, NMFS, 1315 East-West Highway, Silver

Spring, MD 20910.

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

NMFS 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 NMFS 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.

The MMPA Amendments of 1994 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 (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.

Summary of Request

On January 31, 1996, NMFS received a complete application from MIT

requesting an authorization for the harassment of small numbers of

marine mammals incidental to conducting a physical oceanography

experiment that uses sound to study the flow field and mixing processes

in Haro Strait, in the San Juan Island Archipelago (Puget Sound) WA,

just south of Stuart Island (48o39'00'' N, 123o11'00'' W).

The experiment, which will be from June 10 through July 5, 1996,

for a total of 26 days, is scheduled to take advantage of the extreme

ebb tides that

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occur only twice a year. The species of marine mammals requested for

incidental harassment are as follows: Harbor porpoise (Phocoena

phocoena), killer whale (Orcinus orca), Dall's porpoise (Phocoenoides

dalli), and harbor seal (Phoca vitulina). Additional species that are

rare or only occasionally seen in the area at the time of the

experiment may include: Minke whale, elephant seal, Pacific white-sided

dolphin, northern sea lion, California sea lion, humpback whale, and

gray whale. General information on these species can be found in Barlow

et al. 1995 (NOAA Tech. Mem. NMFS-SWFSC-219). More specific information

on marine mammals species in Puget Sound waters, and a description of

the physical oceanography experiment can be found in the application

and in an EA, which are available upon request (see ADDRESSES).

A notice of receipt of the application and the proposed

authorization was published on March 28, 1996 (61 FR 13847) and a 30-

day public comment period was provided on the application and proposed

authorization. Additional information on the mitigation and monitoring

program was provided on April 9, 1996 (61 FR 15785). During the comment

period and subsequent to its closure, several letters were received.

Other than information necessary to respond to comments, additional

information on the activity and authorization request can be found in

the above-mentioned Federal Register documents and does not need to be

repeated here.

Comments and Responses

Authorization Concerns

Comment: Do not permit this experiment.

Response: NMFS would like to make clear that it does not authorize

the project, only the incidental harassment of marine mammals occurring

as a result of this project. Not issuing a permit does not necessarily

terminate the project.

Comment: Because there are too many unknowns as to the impacts on

their sonar, hearing and feeding habits, the research permit should be

denied.

Response: The requested authorization is for an exemption to the

MMPA's prohibition on taking for the harassment of small numbers of

marine mammals incidental to conducting a specified activity within a

specified geographic region. This is an authorization issued under

section 101(a)(5)(D) of the MMPA, not for a scientific research permit

under section 104 of the MMPA. To prohibit incidental takings that

occur while conducting activities otherwise allowed by law would be to

deny an exemption that is authorized by the MMPA provided the best

scientific information and evidence available indicates that the take

is incidental, only small numbers of marine mammals are taken, and the

impact on marine mammals and their habitat is negligible.

Comment: The purpose of the project would be to negatively impact

marine life, specifically and intentionally to cause harassment or

harm; sounds are being broadcast to determine if it will affect marine

mammals; and sounds are being transmitted to see if they can withstand

the noise.

Response: As stated in the proposed authorization, the project is a

physical oceanography project that uses various sound sources to study

the flow field and mixing processes in Haro Strait, Puget Sound, WA. It

is not a research project designed to study the effects of sound on

marine mammals. However, an extensive mitigation and monitoring

program, as required under section 101(a)(5)(D) of the MMPA, has been

designed as part of this project to assess impacts of sounds that may

potentially harass marine mammals and to ensure that these impacts are

the lowest level practicable. Therefore, in addition to providing

information on the physical oceanographic processes in Haro Strait, the

experiment will also provide information and data on the effects of

high frequency sounds on marine mammals.

Comment: Sounds would cause harm to a variety of ocean mammals and

other sea creatures.

Response: The proposed authorization analyzed potential impacts and

the mitigation measures proposed to reduce these potential impacts on

marine mammals to the lowest level practicable. These impacts are also

analyzed in the EA prepared for this authorization. Based upon the best

scientific information available, NMFS has determined that this

physical oceanography project would have only a negligible impact on

the stocks of marine mammals in the Haro Straits area. While

statutorily authorized under the MMPA, the potential to cause Level A

harassment (injury) to marine mammals is considered unlikely, provided

planned mitigation and monitoring measures that have been proposed by

the applicant are incorporated.

Comment: Sound may damage the hearing of marine mammals.

Response: The proposed authorization provided detailed analyses on

the potential for auditory damage to marine mammals from the various

sound sources that will be used by this experiment. Calculations

indicate that marine mammals would need to be closer than .25 m of the

long-base-line transponders in order to potentially receive hearing

damage; for other sources, animals would need to be even closer.

However, the applicant presumes that the near-field effects might cause

the distance to be slightly greater (but less than 1 m), than

calculated by spherical spreading alone. As a result, NMFS and the

applicant believe that there is virtually no possibility of inflicting

permanent hearing damage on any marine mammals.

Comment: Marine mammals (especially killer whales) already endure

an unacceptable amount of noise pollution and harassment due to depth

finders, boat/tanker traffic, and whale-watching expeditions. NMFS

should consider assessing whether sounds to be used in the proposed

experiment, combined with sounds from other sources, could have non-

negligible effects on marine mammals.

Response: NMFS notes that, even with various sources of

anthropogenic sources of noise in the marine environment, the southern

resident community of killer whales in Puget Sound has increased 40

percent since 1976. However, activities and the potential impact of

unregulated noise from these activities on marine mammals are of

concern to NMFS. The monitoring measures planned in conjunction with

this short-term oceanography project may provide some insight into

behavioral responses by marine mammals to high frequency sounds.

Habitat Exclusion Concerns

Comment: The marine mammals may be negatively affected to the point

where they vacate the area of the experiment. This will have a very

negative effect on the animals, depriving them of their natural and

normal foraging area. Also, by forcing marine mammals from their

habitats would result in competition with other species over scarce

food.

Response: The only marine mammal species that might be affected by

habitat exclusion are the harbor porpoise and killer whale. As a

result, a monitoring program will be implemented that will involve

suspension of the experiment, recovery of species abundance in the area

and termination if habitat exclusion continues. Please refer to the

earlier Federal Register notices (61 FR 13847, March 28, 1996 and 61 FR

15785, April 9, 1996) for detailed discussion on the mitigation

measures planned to address this concern.

[[Page 30039]]

Comment: The sound would impact an area far wider than suggested,

given the rock faces, steep pitches and water mass interactions in Haro

Straits.

Response: The applicant has provided detailed analyses of the

attenuation of these sources, using spherical and cylindrical models

and factoring in propagation loss. Without providing scientific

information or references to support the comment, NMFS is unable to

analyze the veracity of this comment.

Comment: If this experiment should somehow affect the orcas in that

they decide to move out of the area for a number of days the whale

watching industry would be economically affected. The marine mammals

are the natural resource that the whalewatching industry relies upon to

exist.

Response: Since NMFS does not authorize the project, only the

harassment of marine mammals incidental to the activity, the economic

impact on the commercial whale watch industry is not within the scope

for consideration under the MMPA. However, as noted in the application

and in the previous notices, the experiment will contain mitigation and

monitoring measures that will avoid to the extent possible habitat

exclusion by harbor porpoise and killer whales.

Comment: During June and July, resident orcas have superpods in

that area with the intent of mating. If this experiment should thwart

the superpod mating, the results will not be clear to us now but could

affect the future of the resident pods.

Response: According to the information available to NMFS, there are

approximately 90 resident killer whales in the southern community and

45 transient animals. Based upon Olesiuk et al. (1990) and Bain (pers.

comm. to B. Norberg, May 1996), there appears to be a bimodal calving

period for killer whales which would indicate that successful breeding

is mostly taking place from April to mid-June and again in Sept/Oct.

This bi-modal period, the short-term of the research project (June 10-

July 5) and the mitigation measures imposed to protect killer whales,

indicates that this comment does not appear to warrant additional

mitigation measures be imposed on the experiment.

Comment: The experiment should be done in winter months (so the

whalewatching industry would be unaffected).

Response: As discussed in the proposed authorization, the

experiment, which will be from June 10 through July 5, 1996, is

scheduled to take advantage of the extreme ebb tides that occur only

twice a year. This time of the year would also benefit from spring

freshwater flows. The winter alternative is unacceptable to the

applicant and NMFS, because weather conditions at that time of the year

would make operations extremely difficult and would make marine mammal

monitoring virtually impossible.

Monitoring Concerns

Comment: There would not be any independent monitoring. The

researchers would be basically policing themselves, because the person

in charge of monitoring impacts is also employed by Woods Hole.

Response: There is no requirement under the MMPA that monitoring be

independent of the activity. As noted in the proposed authorization,

the applicant is a faculty member of the Department of Ocean

Engineering, MIT, while the person conducting the monitoring is in the

Department of Biology, MIT. Because the monitoring program under this

activity is more complex than most, NMFS has determined that both

participants should be covered under the authorization. In addition to

a monitoring team, the applicants have established an advisory board

for monitoring this activity's impacts on marine mammals. These

advisors are scientists operating in Haro Strait and are from the

Friday Harbor Whale Museum, the University of Victoria, the University

of Washington, and the Canadian Department of Fisheries and Oceans,

none are from MIT. The applicants have agreed to follow the

recommendations of the scientific oversight committee in scheduling

activities.

Comment: The sound source must be monitored at all times during

these tests with assurances that it will be halted if any marine

mammals are observed having behavioral changes or injuries.

Response: NMFS agrees. Please refer to the notice of proposed

authorization (61 FR 13847, March 28, 1996) where this issue was

addressed in detail.

National Environmental Policy Act Concerns

Comment: An Environmental Impact Statement must be prepared prior

to authorization.

Response: In the notice of proposed authorization (61 FR 13847,

March 28, 1996), NMFS announced that it had conducted a review of the

potential impacts on marine mammals from the issuance of an incidental

harassment authorization to MIT and determined that there would be no

more than a short-term, negligible impact on marine mammals from the

issuance of the harassment authorization. For that reason, NMFS

determined that issuance of an incidental harassment authorization to

MIT was categorically excluded (CE) (as defined in 40 CFR 1508.4) from

the preparation of either an environmental impact statement or an EA

under the National Environmental Policy Act and section 6.02.c.3(i) of

NOAA Administrative Order 216-6 for Environmental Review Procedures

(published August 6, 1991). However, as a result of the comments

received on this application, NMFS has reviewed the conditions under

which it considered the incidental harassment authorization to MIT to

be a CE and has determined that, because of the lack of public

perception on the effects of high frequency noise on marine mammals, an

EA should be prepared to address these concerns. Based upon that EA,

the Assistant Administrator has determined that issuance of this

authorization will not have a significant impact on the human

environment. As a result of this determination, an environmental impact

statement is not required. The EA is available upon request (see

ADDRESSES).

Conclusions

Based upon the information provided in this notice, the two notices

of proposed authorization, and in an EA on this matter,

NMFS has determined that the short-term impact on marine mammals

from conducting a physical oceanography experiment between June 10 and

July 5, 1996, using high-frequency sound to study the flow field and

mixing processes in Haro Strait, Puget Sound, WA, will result in a

negligible impact on marine mammals. This impact is expected to be

limited to a short-term modification in behavior by certain species of

marine mammals. While behavioral modifications may be made by these

species to avoid noise, this behavioral change is expected to have only

a negligible impact on the animals. However, the mitigation and

monitoring measures that are part of the authorization will provide

additional protection to ensure that the project's impact on marine

mammals is at the lowest level practicable. NMFS has also determined

that this experiment will not have an unmitigable adverse impact on the

availability of this stock for subsistence uses.

Since NMFS is assured that the taking will not result in more than

the incidental harassment (as defined by the MMPA Amendments of 1994)

of small numbers of certain species of marine mammals, would have only

a negligible impact on these stocks, will not have an unmitigable

adverse impact on the

[[Page 30040]]

availability of these stocks for subsistence uses, and would result in

the least practicable impact on the stocks, NMFS has determined that

the requirements of section 101(a)(5)(D) have been met and the

authorization can be issued.

Authorization

For the above reasons, NMFS has issued an incidental harassment

authorization for approximately 30 days between June 10 and July 5,

1996 for the above described experiment provided the above mentioned

mitigation, monitoring and reporting requirements are undertaken.

Dated: June 7, 1996.

Patricia A. Montanio,

Deputy Director, Office of Protected Resources, National Marine

Fisheries Service.

[FR Doc. 96-15060 Filed 6-12-96; 8:45 am]

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