Small Takes of Marine Mammals Incidental to Specified Activities; La Jolla Children's Pool Beach Management and Water Quality Project

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 011999A]

Small Takes of Marine Mammals Incidental to Specified Activities;

La Jolla Children's Pool Beach Management and Water Quality Project

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of proposed authorization for a small take exemption;

request for comments.

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SUMMARY: NMFS has received a request from the City of San Diego's Parks

and Recreation Department for authorization to take small numbers of

Pacific harbor seals by harassment incidental to excavating and

removing beach sand at the La Jolla Children's Pool, La Jolla, CA.

Under the Marine Mammal Protection Act (MMPA), NMFS is requesting

comments on its proposal to authorize the City of San Diego to

incidentally take, by harassment, small numbers of seals in the above-

mentioned area.

DATES: Comments and information must be received on or before March 24,

1999.

ADDRESSES: Comments on the application should be addressed to the

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

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

20910-3225. A copy of the application and a list of references used in

this document may be obtained by writing to this address or by

telephoning one of the contacts listed here.

FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, Office of

Protected Resources at 301-713-2055, or Joe Cordaro, Southwest Regional

Office at 562-980-4017.

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) 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 takings 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.

Summary of Request

On December 28, 1998, NMFS received a request from the City of San

Diego for authorization to take small numbers of Pacific harbor seals

(Phoca vitulina) and possibly 1 to 2 California sea lions (Zalophus

californianus) and northern elephant seals (Mirounga angustirostris) by

harassment incidental to excavating and removing 3,000 yd3

(2,295 m3) of beach sand at the La Jolla Children's Pool.

The La Jolla Children's Pool was constructed in 1931 to provide a

sheltered swimming area for children in La Jolla. Over time, the beach

behind the breakwater has gradually widened as sand has accumulated in

the sheltered pool. By 1998, the shoreline had advanced to near the end

of the breakwater, at the mouth of the pool, leaving very little area

for recreational swimming. The lack of a protected swimming area and

the proximity to dangerous rip current conditions near the breakwater

opening have created significant safety concerns.

In addition to the restricted use and associated dangers due to

sand accretion, recreational use has been further compromised by a

population of harbor seals that regularly use the Children's Pool area

as a haul-out area. Seal feces from the concentrated harbor seal

population have resulted in fecal coliform bacteria counts that

significantly exceed State water quality standards for bathing beaches

and body

[[Page 8549]]

contact areas. DNA testing has confirmed the harbor seal population as

the source of the bacterial contamination. As a result, the Children's

Pool has been determined unsafe for human contact and has been closed

to the public for all water contact since September 4, 1997. Moreover,

the presence of the large seal population attracts large numbers of

non-bathing observers to the beach area. This interaction has raised

additional safety concerns for both humans and the seals.

The La Jolla Children's Pool Beach Management and Water Quality

Project proposes to restore a safe swimming area and acceptable water

quality to the pool by reducing the beach width.

Out of 4,200 yd3 (3,213 m3) of sand in the

pool area, approximately 3,000 yd3 (2,295 m3)

will be excavated and removed to narrow the beach. Approximately 20

truckloads, or 100 yd3 (76.5 m3) per day, will be

excavated from the Pool and transported to the disposal site. As a

result, it is expected that the sand excavation activity will take up

to 30 working days to complete. With a proposed completion date of May

27, 1999, should the timeline require fewer days for completion, the

Project proposes using larger trucks to complete the project. After

sand removal, the beach profile will be slowly adjusted such that the

pool will be deeper and wider at the outer side, and shallower and

narrower at the landward side, providing children with a safe area to

swim. The City of San Diego expects that the excavation will enlarge

the area available for recreational swimming and provide a safe region

for the public away from the dangerous rip currents, and, by reducing

the area available for harbor seals, water quality levels are expected

to return to former levels that were acceptable and safe for human

contact.

Description of Marine Mammals Affected by the Activity

General information on harbor seals and other marine mammal species

found in Southern California waters can be found in Barlow et al.

(1995, 1997). Please refer to those documents for information on these

species.

Based on the most recent harbor seal counts (23,302 in May/June

1995; Hanan, 1996) and on Hanan's revised correction factor (1.3), the

harbor seal population in California is estimated to number 30,293

(Barlow et al., 1997). In California, there are approximately 400 to

500 harbor seal haul-out sites, widely distributed along the mainland

and at offshore islands, including intertidal sandbars, rocky shores,

and beaches.

In the Children's Pool area, researchers found that the monthly

peak counts of harbor seals (based upon ground counts) present during

the 2-year survey ranged from 11 to 142 (Yochem and Stewart, 1996). The

range of other marine mammals present included 1 to 2 California sea

lions and 1 northern elephant seal. While no seal births were observed

in the Pool area during the study period, a few nursing pups were

observed from April through June, with peak pup counts taking place in

June.

Potential Effects on Marine Mammals

The marine mammal most likely to be impacted by the sand removal

project is the harbor seal. However, one or two California sea lions

and/or northern elephant seals might also be affected. The type of

taking anticipated will be incidental harassment caused by the noise of

excavation equipment and truck traffic. It is anticipated that the

seals may be disturbed and will be flushed from the beach upon

initiation of activities on a daily basis, unless they become

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

depending, in part, on the tidal elevation at the nearby haul-out site

at Seal Rock at the time of initiation of the activity. Because the

project will work only during daylight hours, seals may haul out upon

conclusion of the day's activities. Alternatively, due to the activity

of heavy machinery required to move the sand off the beach, the harbor

seals may avoid the site for the duration of the project and haulout on

the nearby Seal Rock Marine Mammal Reserve or at alternate sites. Once

the project has been completed, there will be a reduced area for

hauling out and increased competition with recreational users which

will likely reduce the number of harbor seals returning to the

Children's Pool area to haul-out. These seals are expected to utilize

Seal Rock or other haulouts in the area. No seals are expected to be

seriously injured or killed by this activity.

Monitoring and Reporting

One or more marine mammal biologists will conduct observations on

harbor seal behavior before, during, and after the beach excavation

project. Impacts will be observed and recorded as the sand removal

begins and ends each work day. Upon completion of the project, data

will be collected on the harbor seal population at Children's Pool

daily for 2 weeks. Data collection format will follow that required for

the 1994 to 1996 study conducted on the populations of harbor seals at

Seal Rock Marine Mammal Reserve and Children's Pool by Hubbs-Sea World

Research Institute. To assess any seasonal impact on the harbor seal

population, quarterly observations will be recorded for a period of 1

year following completion of the project (July and October 1999, and

January and April, 2000). A draft report will be submitted to NMFS

within 90 days of completion of the 2-week post-project monitoring, and

an interim report will be submitted within 90 days after the April 2000

observations. Both the draft and final reports will be subject to

review and comment by NMFS. Any recommendations made by NMFS will need

to be addressed in a final report prior to acceptance by NMFS.

Conclusions

NMFS has preliminarily determined that the short-term impact of

excavating and removing beach sand at the La Jolla Children's Pool will

result, at worst, in a temporary modification in behavior by harbor

seals and possibly one or two California sea lions and northern

elephant seals. While these behavioral modifications, including the

permanent vacating the haulout at Children's Pool, may be made by these

species to avoid the resultant excavation noise and smaller beach area,

this action is expected to have no more than a negligible impact on the

species or stocks of these animals. In addition, no take by injury and/

or death is anticipated or authorized.

Proposed Authorization

NMFS proposes to issue an incidental harassment authorization to

the City of San Diego for possible harassment of small numbers of

Pacific harbor seals, California sea lions, and northern elephant seals

incidental to excavating and removing beach sand at the La Jolla

Children's Pool, La Jolla, CA. NMFS has preliminarily determined that

the proposed activities would result in the harassment of only small

numbers of each of these species of marine mammals and would have no

more than a negligible impact on these marine mammal stocks.

Information Solicited

NMFS requests interested persons to submit comments, information,

and suggestions concerning this request (see ADDRESSES).

Dated: February 17, 1999.

P. Michael Payne,

Acting Deputy Director, Office of Protected Resources, National Marine

Fisheries Service.

[FR Doc. 99-4292 Filed 2-19-99; 8:45 am]

BILLING CODE 3510-22-F