Small Takes of Marine Mammals Incidental to Specified Activities

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 102198A]

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

[[Page 58013]]

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 November

30, 1998.

ADDRESSES: Comments on the application should be addressed to Michael

Payne, Chief, Marine Mammal Division, Office of Protected Resources,

NMFS, 1315 East-West Highway, Silver Spring, MD 20910-3225. A copy of

the application, and a 1994 environmental assessment, which includes a

list of references used in this document, may be obtained by writing to

this address or by telephoning one of the contacts listed in FOR

FURTHER INFORMATION CONTACT section.

The Washington State Final Environmental Impact Statement (FEIS)

and other documents are available for review during regular business

hours in the following offices: Office of Protected Resources, NMFS, Rm

13600, 1315 East-West Highway, Silver Spring, MD 20910, and Northwest

Region, NMFS, Bldg 1, 7600 Sand Point Way, Seattle, WA 98115.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of

Protected Resources, NMFS, (301) 713-2055, or Brent Norberg, Northwest

Regional Office, NMFS, (206) 526-6733.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) and (D) 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 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) or 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 Marine Mammal Protection Act

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 now 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.

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

On September 18, 1998, NMFS received an application from the WDOC

requesting an authorization for the possible harassment of small

numbers of harbor seals incidental to work involved in the removal and

replacement of the Still Harbor Dock Facility (Dock Facility), a foul

weather landing facility for the McNeil Island Corrections Center,

McNeil Island, WA. (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). 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.

On January 23, 1995, the WDOC was issued an Incidental Harassment

Authorization (IHA) under section 101(a)(5)(D) of the MMPA for this

project (see 60 FR 7046, February 6, 1995). However, removal of the

Dock Facility was not completed; the IHA expired one year after

authorization; and a renewal was not requested since that time.

The renovation will include demolition of the existing facility;

construction of a new pile-supported concrete access trestle

approximately 350 ft (107 m) long by 10 ft (3.0 m) wide, a new 50 ft

(15.2 m) long by 5 ft (1.5 m) wide aluminum gangway, seven new 10 ft

(3.0 m) wide and 50 ft (15.2 m) long and one new 14 ft (4.3 m) wide and

60 ft (18.3 m) long concrete floats; and 60 steel pipe and prestressed

concrete piles. All new structures will be constructed within the

footprint of the existing facility. The new dock will be significantly

smaller than planned in 1994 (8,000 ft2 v. 20,000

ft2). Additional information on the dock facility and the

Corrections Center in general can be obtained by referring to the FEIS

published by the WDOC in 1989 in compliance with the State

Environmental Policy Act of 1971 (Chapter 43.21C, Revised Code of

Washington). This document and the 1998 Addendum are available for

viewing (see ADDRESSES).

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

will be used for demolition. 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 one season's specified work window from December 1998 or January

1999, through March 15, or April 1, 1999. Above-water work is scheduled

to continue through to the end of August 1999.

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 Dock Facility

(although a few California sea lions may also be harassed). 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 (305 m) from the

[[Page 58014]]

Dock Facility. The type of taking anticipated will be incidental

harassment caused by the noise of demolition work, pile driving, and

construction. It is anticipated that the seals may be disturbed upon

initiation of 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.

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.).

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

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

Barlow et al. (1997) estimate the inland population at 16,253, giving

it a minimum population size estimate of 15,349. South Puget Sound pup

counts are presently increasing at an annual rate of 15.3% 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. Based on data from

the Washington Department of Fish and Wildlife (WDFW) and NMFS on

Gertrude Island, total seal counts between 1988 and 1993 indicate the

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 vary 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 to 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).

The impact to the harbor seals would be disturbance by noise which

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

number of harbor seals. When harbor seals are frightened by noise or by

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

seals will move rapidly to the relative safety of the water. 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). These short term disturbances and site

reoccupation were confirmed by observations conducted during the first

phase of the project (WDOC, 1997). 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

when the use of the dock facility serving as a foul weather moorage for

WDOC passenger ferries, barges, tugboats, and patrol boats increases.

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 here) under an MMPA IHA are expected to reduce any

impacts to a negligible level.

Mitigation

Efforts to ensure negligible impact of the dock renovation project

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

the IHA include:

1. A December 1-July 15 (or whenever newborn pups are first

observed on Gertrude Island) work schedule for those activities that

are predicted to disturb harbor seals in order to avoid adversely

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

to October 15);

2. A 1,000-ft (305 m) 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 marked 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 under

discussion; alternatively, WDOC may contract with a private contractor

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

notify NMFS and the WDFW prior to work in order to coordinate the

monitoring of potential disturbances to seals.

Proposed Authorization

NMFS proposes to issue an incidental harassment authorization for 1

year for the demolition of the collapsed portion of the 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 Dock Facility would result in the harassment taking of only a small

number of harbor seals and possibly California sea lions, would have a

negligible impact on the harbor seal and California sea lion stocks and

would not have an adverse impact on the availability of these stocks

for subsistence uses.

Information Solicited

NMFS requests interested persons to submit comments, information,

and suggestions concerning this request.

Dated: October 23, 1998.

Hilda Diaz-Soltero,

Director, Office of Protected Resources, National Marine Fisheries

Service.

[FR Doc. 98-29021 Filed 10-28-98; 8:45 am]

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