Small Takes of Marine Mammals Incidental to Specified Activities; Seismic Hazards Investigations in Puget Sound

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 080697A]

Small Takes of Marine Mammals Incidental to Specified Activities;

Seismic Hazards Investigations in Puget Sound

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) to take small numbers of marine mammals

by harassment incidental to collecting deep-crustal marine seismic data

in the Puget Sound/Straits of Juan de Fuca region of Washington State

has been issued to the U.S. Geological Survey (USGS).

DATES: This authorization is effective from January 1, 1998, through

March 31, 1998.

ADDRESSES: The application and monitoring plan, authorization, and

environmental assessment (EA) are available by writing to the Chief,

Marine Mammal Division, Office of Protected Resources, NMFS, 1315 East-

West Highway, Silver Spring, MD 20910-3225, or by telephoning one of

the contacts listed (see FOR FURTHER INFORMATION CONTACT).

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

Sections 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, 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 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 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.''

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 July 2, 1997, NMFS received an application from the USGS, on

behalf of the Seismic Hazards Investigations in Puget Sound (SHIPS)

project, requesting an authorization for the possible harassment of

small numbers of several species of marine mammals incidental to

conducting marine seismic surveys in Puget Sound, WA. The survey is to

collect data on the earthquake hazards of the Puget Sound area.

Geological features around the Puget Sound that might produce

earthquakes lie obscured beneath water, city, forest, and thick glacial

deposits. As a result, investigators must use sound waves that are

produced by an array of airguns to indirectly view these features.

Because seismic noise from the proposed survey's airguns could

potentially affect marine mammals due to disturbance by sound (i.e.,

acoustic harassment), an incidental harassment authorization under the

MMPA is warranted.

The main goals of the SHIPS project concern understanding

earthquake processes and mitigating a potential disaster, not

earthquake prediction. Geologists have clear evidence for past

earthquakes, but basic geological information about earthquake

processes is lacking. To close this critical information gap, the SHIPS

consortium will collect seismic reflection and seismic refraction data

in and near Puget Sound. Seismic reflection data will help locate

potential earthquake faults, and seismic refraction data will show the

speed of sound waves in deep rocks. These data together will reveal the

structure and physical properties of rocks where earthquakes are likely

to occur. Information from onshore seismometers will reveal where deep

rocks could focus earthquake waves at the surface and where surface

sediment is weak.

In places where these conditions of focusing and sediment weakness

overlap, buildings and other infrastructure are at elevated risk of

damage or destruction during a major earthquake. SHIPS will provide

information needed to make maps, for city planners, to show areas of

potentially strong ground motion so that scarce funds for seismic

retrofitting can be allocated on a rational basis. Prime candidates for

retrofitting are schools and hospitals. Additionally, freeway

interchanges and major bridges, as well as structures housing police

and firefighters, must withstand earthquakes so that survivors receive

prompt assistance.

Dependent upon ship scheduling, the seismic survey is expected to

take approximately 2 weeks sometime during late February and March

1998. A detailed description of the work planned is contained in the

application

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(USGS 1997) and the EA. These documents are available upon request (see

ADDRESSES).

Comments and Responses

A notice of receipt of the application and proposed authorization

was published on September 17, 1997 (62 FR 48817), and a 30-day public

comment period was provided on the application and proposed

authorization. Comments were received from three organizations.

Information on the activity, the authorization request and expected

impact on marine mammal species, not subject to reviewer comments can

be found in the proposed authorization notice and is not repeated here.

MMPA Concerns

Comment 1: One commenter believes that, because the USGS estimates

that more than 10,000 harbor seals, 2,000 California sea lions, 1,000

harbor porpoises, and 1,000 Dall's porpoises could be taken incidental

to the proposed activities, that NMFS should address the issue of

whether only ``small numbers'' of marine mammals will be harassed in

the course of conducting surveys.

Response: In 1982 (47 FR 21248, May 18, 1982), NMFS defined ``small

numbers'' to mean a portion of a marine mammal species or stock whose

taking would have a negligible impact on that species or stock. NMFS

believes that this is an appropriate definition because Congress,

recognizing that the concept (i.e., small) was not capable of being

expressed in absolute numerical numbers, was unable to offer a more

precise formulation when section 101(a)(5)(A) of the MMPA was

implemented that year (H. Rept. 97-228, p 19). NMFS did not then, and

does not now, believe that the term can be expressed as an absolute

number or percentage or be defined in any absolute terms. While

Congress noted that year that there were two separate safeguards in

place under the small take exemption (i.e., ``small'' and ``negligible

impact''), NMFS believes that the 1986 MMPA amendments, wherein the

definition of ``negligible impact'' was amended and taking

authorizations were extended to include depleted, threatened, and

endangered species, that taking authorizations should be based on a

population's size and status and the stock's reproductive potential,

rather than on a simple numerical level. Therefore, while the number of

takings may not be viewed by some to be small numerically, they can be

considered small in relation to the impact on marine mammal species and

stocks. When takings are limited to short-term harassments, such as the

Puget Sound seismic survey, this determination can be more easily made

than in situations where the numbers represent mortalities.

Monitoring Concerns

Comment 2: Three commenters were concerned that the proposed

monitoring program was currently unfunded. Two of these commenters

recommended that the IHA be conditioned to require sufficiently funded

monitoring to examine the effects on the resident marine mammals.

Response: While the Federal Register notice stated that ``the

monitoring program is unfunded,'' this was not entirely correct. The

USGS has responded to this concern by noting that there is sufficient

funding to conduct the monitoring required under section 101(a)(5)(D)

of the MMPA. This required monitoring, discussed in more detail below

(see Monitoring), is necessary to ensure that the take is small and not

having more than a negligible impact on Puget Sound marine mammal

stocks. However, funding is still unavailable to meet certain planned

research objectives. At this time, the USGS is seeking this funding

from Federal and private sources. It should be noted that this activity

would provide a platform of opportunity for interested marine mammal

researchers.

Comment 3: One commenter recommended that the monitoring program be

expanded to include (a) some allocation for aerial surveys of marine

mammal reactions; (b) the use of a third boat that can survey for

marine mammals ahead of the seismic vessel; (c) the use of marine

mammal observers at night who are equipped with night vision devices,

and (d) some attempt to avoid close approaches to critical habitat

areas, such as San Juan County's Bottom Fish Recovery site at Point

Lawrence, Orcas Island in Rosario Strait. Another commenter recommended

that either a nighttime mitigation measure be developed or nighttime

operations be disallowed.

Response: (a) Aerial surveys and detailed behavioral observations

will be conducted by the USGS. However, expanded acoustic experiments,

involving the measurement of sound levels that marine mammals actually

receive, are part of the unfunded research activities mentioned above.

While this research has long had strong support from within the USGS

(because of the need for better data on the potential impact of seismic

operations on the marine environment), the USGS does not have the funds

to pay for acoustic research, but is working closely with marine mammal

experts to obtain funding from other Federal agencies.

(b) Part of the operational plan for the Canadian ship Tully is for

it to take part in observing marine mammals at various distances from

the airgun array. In addition, when conditions are safe, small boats

will be deployed from the two ships to observe marine mammals; however,

March is not a good time of the year for boats to be out on open water.

The tight USGS budget cannot cover the leasing and staffing of a third

boat large enough to operate safely everywhere the airguns will be

fired. The operational area includes the Straits of Juan de Fuca, which

can become dangerous with high wind and seas.

(c) During nighttime, observers will be required to monitor the

appropriate safety zones whenever the seismic array is powered up, to

protect marine mammals from potential injury (Level A harassment). At

other times during the night, observations are optional at the

discretion of the applicant. Depending upon meteorological and

oceanographic conditions, observations can be made by biologists;

alternatively, crew members on watch can alert scientists to marine

mammal presence. As discussed in the proposed authorization and EA

(Alternative C), suspension of nighttime operations is impractical and

costly to the USGS, and it may not result in reduced impacts to marine

mammals by extending surveys either into a period of greater marine

mammal abundance or into a future year when funding and ship time

become available, or both. NMFS believes that through proper ramp-up,

no marine mammals will be acoustically injured by the seismic array.

However, because a mitigation requirement of the IHA is for the safety

zone to be monitored for 30 minutes prior to the time the array is

scheduled to exceed 160 dB re 1 Pa-m, and during ramp-up, if

the source is powered up at night, the entire 200-m (500-m when in

areas of known mysticete whale habitation-see EA) safety zone needs to

be visible, either visually or acoustically or both, to the biological

observers. Otherwise, the source must remain below 160 dB re 1

Pa-m, until daylight provides sufficient light to observe the

safety zone. Alternatives include lighting the safety zone with high

intensity lights and night vision equipment, both of which have proven

less than optimal. Partially as a result of this short-coming, to aid

in monitoring safety zones at night, the USGS has arranged with the

U.S. Navy to borrow infra-red scopes, which operate differently than

most light-enhancement devices. Infra-red scopes were tested by

biologists in 1997 and found to be

[[Page 2215]]

useful in detecting marine mammals at night.

(d) Airguns were specifically designed to eliminate the fish kills

that were caused during the 1950s by underwater explosions used during

geophysical exploration. Explosives caused a rapid rise to peak

pressure, measured in microseconds, whereas the airgun rise time is

measured in milliseconds. The difference is that the rapid rise time

involves very high pressures at high frequencies, which kills fish at

substantial range. The main sonic injury to fish involves a damaging

resonance of their air-gilled swim bladders by high frequency pressure

waves. In contrast, large fish need to be within about 3 m (9 ft) of an

airgun array to be injured or killed, and at distances between 3 m and

100 m (9 ft and 328 ft), large fish exhibit only a change in behavior.

The low frequency sound of the SHIPS airgun array should have little

effect on fish. For example, the wavelength of 100 Hz sound in water is

15 m (49 ft), which is far too long to cause the swim bladders of fish

to resonate. The airgun array will stay at least 1,000 m (3,281 ft)

from most shorelines. At this distance, there will be little or no

effect on fish at the recovery site.

Mitigation Concerns

Comment 4: One commenter recommended that, if dead or injured

marine animals are found, the USGS should suspend the activities and

consult NMFS before proceeding. This same commenter recommended that

NMFS advise the USGS that, if there is any indication that mortalities

of marine mammals may be occurring, survey activities must be suspended

while NMFS considers whether an authorization under section

101(a)(5)(A) of the MMPA is needed.

Response: There is no scientific evidence that seismic arrays will

result in an immediate death or serious injury to a marine mammal,

although there is a remote potential that mortality could eventually

result from permanent injury to an animal's auditory organs. Therefore,

it is not necessary for the USGS to immediately suspend activities

whenever a seriously injured or dead marine mammal is found in the

vicinity of the survey's trackline.

Of more concern to NMFS, because of the topography of Puget Sound

and the Straits of Juan de Fuca, are marine mammals that strand or

beach themselves coincident with the seismic survey's passage. If this

occurs, the USGS is required to immediately suspend the survey and

contact NMFS. Also, if NMFS is notified by a local stranding network

representative that a beaching/ stranding has occurred at a time when

the seismic array is operating in the vicinity of the stranding(s),

NMFS will immediately investigate the stranding to determine whether a

reasonable chance exists that the array caused the animal's death. If

NMFS determines, based upon a review and possible necropsy of the

animal(s), that the death was likely due to the seismic source, the

survey must cease until procedures are altered to eliminate the

potential for additional mortalities. However, it must be recognized

that there must be a close spatial or temporal connection that suggests

acoustic disturbance as the proximal cause of injury or death before

the survey's incidental harassment authorization can be suspended.

Comment 5: This same commenter also recommended that the USGS

monitor all pinniped approaches and suspend activities if there is any

indication that the active array is adversely affecting pinnipeds.

Response: The IHA requires the USGS to monitor all pinniped (and

cetacean) approaches, and record behavioral reactions. If pinnipeds are

within 100 m (328 ft) of the outer edge of the seismic array, any

instances of repetitive aberrant behavior (e.g., rapid swimming away

while conspecifics remain in the vicinity of the array, lack of diving

behavior), as recorded by the trained biological observer, requires an

immediate implementation of a 100-m (328-ft) safety zone and

notification of NMFS within 24 hours. NMFS will review the information

in a timely manner and will notify the USGS by letter that a safety

zone for pinnipeds is necessary for the duration of the survey or that,

upon review by NMFS scientists, a safety zone is unnecessary for the

protection of pinnipeds from serious injury or mortality.

Comment 6: One commenter cautioned that El Nino may affect the

involved species either directly or through the food chain and that

these effects could exacerbate or mask possible effects of the seismic

survey.

Response: The scientific body of knowledge on marine mammal

distribution and abundance and the species relationship to changes in

spatial distribution of food sources is in general insufficient to make

more than general assumptions on the effects of El Nino on marine

mammals in the North Pacific Ocean. Where long-term monitoring programs

for marine mammals have been established (e.g., San Miguel Island,

Northern Channel Islands, CA), the effects from El Nino are being

monitored and impacts estimated. However, with a short-term event, such

as the SHIPS seismic survey, NMFS believes that El Nino would have

little noticeable effect for the short-term (2 weeks) seismic survey,

although some mortality and distributional effects caused by

temperature or food source shifts may be noticeable during survey

monitoring studies.

Marine Mammals

The species of marine mammals that are likely to be present in

Puget Sound and Straits of Juan de Fuca, and may potentially be

harassed incidental to the USGS seismic survey, include the 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 survey include: Minke whale (Balaenoptera

acutorostrata), elephant seal (Mirounga angustirostris) Pacific white-

sided dolphin (Lagenorhynchus obliquidens), northern sea lion

(Eumetopias jubatus), California sea lion (Zalophus californianus),

humpback whale (Megaptera novaengliae), and gray whale (Eschrichtius

robustus). General information on these latter species can be found in

Barlow et al. (1995). Information relevant to the distribution,

abundance, and behavior of those species most likely to be impacted by

the experiment in Puget Sound and the Straits of Juan de Fuca is

provided in the application and EA. Please refer to those documents for

information on the biology, distribution, and abundance of these

species and the potential impact by the activity on these species.

Mitigation

Several mitigation measures to reduce the potential for marine

mammal harassment will be implemented by USGS as part of their proposed

activity. These include--

(1) Scheduling the survey for the period of February/March, when

marine mammal abundance in Puget Sound/Straits of Juan de Fuca is low;

(2) Establishing and monitoring safety zones continuously to avoid

potential Level A harassment of, or injury to, marine mammals. Whenever

the seismic vessel approaches a marine mammal closer than the distance

mentioned below and described in more detail in both the application

and the EA, the USGS would shut off airguns.

(3) Ceasing airgun operations when gray, minke, and humpback

whales, the marine mammal species that are considered to be most

sensitive to the frequency and intensity of sound that will be emitted

by the airgun array,

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approach within 500 m (1,640 ft) of the seismic vessel.

(4) Ceasing airgun operations when odontocetes, with their lower

sensitivity to low-frequency sound, approach a safety zone of 200 m

(656 ft), twice the calculated radius for preventing any temporary

threshold shift injury.

(5) Maintaining a safety radius of 100 m (328 ft) when pinnipeds

(seals and sea lions) are approached by the SHIPS seismic vessel.

However, if a pinniped approaches the towed airgun array, the USGS will

not be required to shutdown the airguns. Experience indicates that

pinnipeds will come from great distances to scrutinize seismic

operations. Seals have been observed swimming within airgun bubbles, 10

m (33 ft) away from active arrays and, more recently, Canadian

scientists, who were using a high-frequency seismic system that

produced sound closer to pinniped hearing than will the USGS airgun

array, describe how seals frequently approached close to the seismic

source, presumably out of curiosity. Therefore, because the seismic

survey could be severely hampered by delays, because turning across

marine traffic lanes to resume work after a shutdown will be risky and

costly, and because pinnipeds indicate no reaction to seismic noise,

the above-mentioned mitigation plan has been proposed. Instead, the

USGS will gather information on how often pinnipeds approach the airgun

array on their own volition, and what effect the airguns appear to have

on them.

(6) Turning on the airguns sequentially at a rate no greater than 6

dB/minute, so that peak power is achieved gradually to give marine

mammals a chance to move away from the source, in order to ensure no

marine mammals are inadvertently harmed when data collection first

begins, or resumes, after operations have ceased.

(7) Maintaining the ship's speed at 4 to 5 knots during seismic

survey operations, so that nearby marine mammals will have gradual

warning of the ship's approach and can move away.

(8) Having marine biologists aboard the seismic vessel who will

have the authority to stop airgun operations when a mammal enters the

safety zone. These observers will monitor the safety zone to ensure no

marine mammals enter the zone, and record observations on marine mammal

abundance and behavior.

(9) Performing emergency shut-downs. If observations are made that

one or more marine mammals of any species are attempting to beach

themselves when the seismic source is operating in the vicinity of the

beaching, the airgun array will be immediately shut off and NMFS

contacted.

(10) Investigate strandings of marine mammals upon notification by

a local stranding network that a marine mammal has been found dead

within the waters of Puget Sound, the San Juan Archipelago, or the

Straits of Juan de Fuca when the array is operating within that body of

water, to determine whether a reasonable chance exists that the SHIPS

project caused the animal's death. If NMFS determines, based upon a

necropsy of the animal(s), that the death was likely due to the seismic

source, the survey must cease until procedures are altered to eliminate

the potential for future deaths.

Monitoring

The objectives of the monitoring program will be: To mitigate

potential harassment of marine mammals, to document the number of

animals of each species present in the vicinity of the sound

transmissions, and to evaluate the reactions of marine mammals to these

transmissions. Focused surveys will be conducted in geographic areas of

particular concern, especially for gray whales that migrate past the

western entrance to the Straits of Juan de Fuca and other members of

this species that spend the summer in the survey area (near south

Whidbey Island and the Straits of Juan de Fuca), humpback whales near

Swiftsure Bank and the waters west of the Straits, harbor porpoise that

tend to congregate along western Whidbey Island and elsewhere, and

minke whales that frequent shallow banks in the Strait of Juan de Fuca.

All species of large whales (humpback, gray, minke, or killer whales)

will be photographed to identify the individual using the area. For a

more detailed description of the monitoring program, please refer to

the EA. In addition, if funding becomes available, hydrophones will be

used to measure sound levels, to correlate mammal behavior with actual,

received sound levels.

Consultation

Under section 7 of the Endangered Species Act, NMFS has completed

consultation on the issuance of this authorization.

National Environmental Policy Act

In conjunction with the notice of proposed authorization, NMFS

released a draft EA that addressed the impacts on the human environment

from issuance of the authorization and the alternatives to the proposed

action. No comments received on the draft EA during the comment period.

Therefore, as a result of the findings made in the EA, NMFS has

concluded that implementation of either the preferred alternative or

other identified alternatives would not have a significant impact on

the human environment. As a result of that finding, an Environmental

Impact Statement will not be prepared. A copy of the EA is available

upon request (see ADDRESSES).

Conclusions

NMFS has determined that the short-term impact of conducting deep

crustal marine seismic surveys will result, at worst, in a temporary

modification in behavior by certain species of pinnipeds and possibly,

some individual cetaceans. While behavioral modifications may be made

by certain species of marine mammals to avoid the resultant noise from

airgun array, this behavioral change is expected to have a negligible

impact on the animals.

In addition, no take by injury and/or death is anticipated, and

takes will be at the lowest level practicable due to incorporation of

mitigation measures. No known rookeries, mating grounds, areas of

concentrated feeding, or other areas of special significance for marine

mammals occur within or near the planned area of operations during the

season of operations.

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

the incidental harassment (as defined by the MMPA) of small numbers of

certain species of marine mammals, would have only a negligible impact

on these stocks, and would result in the least practicable impact on

the stocks, NMFS has determined that the requirements of section

101(a)(5)(D) of the MMPA have been met and the authorization can be

issued.

Authorization

Accordingly, NMFS has issued an IHA to the USGS for the possible

harassment of small numbers of several species of marine mammals

incidental to collecting deep-crustal marine seismic data in the Puget

Sound/Straits of Juan de Fuca region of Washington State, provided the

mitigation, monitoring and reporting requirements described in the

authorization are undertaken.

Dated: December 30, 1997.

Hilda Diaz-Soltero,

Director, Office of Protected Resources, National Marine Fisheries

Service.

[FR Doc. 98-806 Filed 1-13-98; 8:45 am]

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