[Federal Register: February 19, 2003 (Volume 68, Number 33)]
[Notices]
[Page 7984-7986]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19fe03-44]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 012303A]
Small Takes of Marine Mammals Incidental to Specified Activities;
Port of Miami Construction Project (Phase II)
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 U.S. Army Corps of
Engineers-Jacksonville District (Corps) for an Incidental Harassment
Authorization (IHA) to take small numbers of marine mammals, by
harassment, incidental to deepening the Dodge-Lummus Island Turning
Basin in Miami, FL (Turning Basin) to a depth of 44 ft (13.41 m). Under
the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on
its proposal to issue a 1-year small take authorization, to the Corps
to incidentally take, by harassment, small numbers of bottlenose
dolphins (Tursiops truncatus) as a result of conducting this activity.
DATES: Comments and information must be received no later than March
21, 2003.
ADDRESSES: Comments on the application should be addressed to Donna
Wieting, Chief, Marine Mammal Conservation Division, Office of
Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD
20910-3225. Comments cannot be accepted if submitted via e-mail or the
Internet. A copy of the application may be obtained by writing to this
address or by telephoning the contact listed here. Publications
referenced in this document are available for viewing, by appointment
during regular business hours, at this address.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, (301)
713-2322, ext 128.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.)
direct 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 MMPA 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 (i) has the
potential to injure a marine mammal or marine mammal stock in the
wild; or (ii) has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of behavioral
patterns, ncluding, 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 June 24, 2002, NMFS received a request from the Corps for an IHA
to take bottlenose dolphins incidental to deepening the Turning Basin
in the Port of Miami, south of Dodge-Lummus Island. The Port of Miami
is one of the major terminal complexes in Florida. The majority of this
tonnage is high-value general cargo transported in trailers and
containers. The Port also accommodates a large cruise ship industry.
Development has primarily centered on the Lummus Island terminal and
container complex facilities. Expanding and deepening the Turning Basin
would eliminate the need for vessels docked at Lummus Island to back to
or from the Fisher Island Turning Basin.
Completion of the dredging project may employ a hopper dredge,
clamshell dredge, cutterhead dredge and/or confined blasting. The
dredging will remove 1.4 million cubic yards of material from an area
1,500 ft (457.2 m) in diameter. The Corps proposes to dredge the
Turning Basin, starting in December 2002, to a maximum depth of 42 ft
(12.8 m) plus a 2 ft (0.61 m) overdepth. Material removed from the
dredging will be placed in the Miami Ocean Dredged Material Disposal
Site.
The Corps expects the contractor will employ underwater dredging
and confined blasting to construct the project. Blasting has the
potential to have adverse impacts on bottlenose dolphins inhabiting the
area near the project. While the Corps does not presently have a
blasting plan from the contractor which will specifically identify the
number of holes that will be drilled, the amount of explosives that
will be used for each hole, the number of blasts per day (usually no
more than 3/day) or the number of days the construction is anticipated
to take to complete, the Corps has forwarded to NMFS a description of a
completed project in San Juan Harbor, Puerto Rico to use as an example.
For that project, the maximum weight of the explosives used for each
event was 375 lbs (170 kg) and the contractors detonated explosives
once or twice daily from July 16 to September 9, for a total of 38
individual detonations. Normal practice is for each charge to be placed
approximately 5-10 ft (1.5-3 m) deep depending on how much rock needs
to be broken and how deep a depth is sought. The charges are placed in
the holes and tamped with rock. Therefore, if the total explosive
weight needed is 375 lbs (170 kg) and they have 10 holes, they would
average 37.5 lbs (17.0 kgs)/hole. However, a more likely weight for
this project may be only 90 lbs (41 kgs) and, therefore, 9 lbs(4.1 kg)/
hole. Charge weight and other determinations are expected to be made by
the Corps and the contractor approximately 30-60 days prior to
commencement of the construction project. Moreover, because the charge
weight and other information is not presently available, NMFS will
require the Corps provide this information to NMFS, including
calculations for impact/mitigation ranges (for the protection of marine
mammals and sea turtles from injury), prior to commencing work.
[[Page 7985]]
Description of the Marine Mammals Affected by the Activity
General information on marine mammal species found off the East
Coast of the United States can be found in Waring et al. (2001, 2002).
This report is available at the following location:
http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/sars.html
.
The only marine mammal species likely to be found in the Turning
Basin is the bottlenose dolphin. There is not currently a stock
assessment available concerning the status of bottlenose dolphins in
the inshore and nearshore waters off south Florida. Additionally, while
neither a status review nor peer-reviewed reports of status of the
Biscayne Bay bottlenose dolphins have been published, the Southeast
Fisheries Science Center, NMFS, is currently working on this report.
Preliminary information indicates a documented population of 159
bottlenose dolphins residing within the boundaries of the Biscayne Bay
area. A total of 146 bottlenose dolphins have been resighted in the
Port of Miami area at least one additional time. These animals were
often sighted within or transiting through the Port of Miami. It is not
known whether bottlenose dolphins inhabit the Turning Basin or whether
they simply use the area as a transit to North Biscayne Bay or offshore
via the main port channel. The defined stocks of bottlenose dolphins
that reside closest to the project area, therefore, are the western
North Atlantic coastal and offshore stocks of bottlenose dolphins with
minimum populations estimated to be 2,482 for the coastal stock and
24,897 for the offshore stock. Additional assessment information for
these two stocks is available at the previously mentioned URL.
Potential Effects on Marine Mammals
In general, potential impacts to marine mammals from explosive
detonations could include both lethal and non-lethal injury, as well as
Level B harassment. Marine mammals may be killed or injured as a result
of an explosive detonation due to the response of air cavities in the
body, such as the lungs and bubbles in the intestines. Effects are more
likely to be most severe in near surface waters where the reflected
shock wave creates a region of negative pressure called ``cavitation.''
A second criterion for mortality is the onset of extensive lung
hemorrhage. Extensive lung hemorrhage is considered debilitating and
potentially fatal. Suffocation caused by lung hemorrhage is likely to
be the major cause of marine mammal death from underwater shock waves.
The estimated range for the onset of extensive lung hemorrhage to
marine mammals varies depending upon the animal's weight, with the
smallest mammals having the greatest potential hazard range.
NMFS has established dual criteria for determining non-lethal
injury for explosives as the peak pressure that will result in: (1) the
onset of slight lung hemorrhage, or (2) a 50-percent probability level
for a rupture of the tympanic membrane. These are injuries from which
animals would be expected to recover on their own. Finally, NMFS has
established dual criteria for Level B acoustic harassment: (1) an
energy-based TTS criterion of 182 dB re 1 uPa\2\-sec cumulative energy
flux in any 1/3 octave band above 100 Hz for odontocetes (and sea
turtles) derived from experiments with bottlenose dolphins (Ridgway et
al., 1997; Schlundt et al., 2000); and (2) 12 psi peak pressure cited
by Ketten (1995) as associated with a safe outer limit for minimal,
recoverable auditory trauma (i.e., TTS). The Level B Harassment zone
therefore is the minimum distance at which neither criterion is
exceeded.
To protect endangered, threatened and protected species (manatees,
dolphins, sea turtles), the following equations have been proposed by
the Corps for this project to determine zones for injury or mortality
from an open water explosion and to assist the Corps in establishing
mitigation to reduce impacts to the lowest level practicable. These
equations are believed to be conservative since they are based on
unconfined charges and the proposed blasts in the Turning Basin will be
confined (stemmed) charges. The equations are:
Caution Zone radius = 260 (lbs/delay)\1/3\
Safety Zone radius = 520 (lbs/delay)\1/3\
The caution zone is the radius from the detonation where mortality
(but not necessarily injury), would not occur in an open-water blast
while the safety zone is the approximate distance where non-serious
injury (Level A harassment) is unlikely from an open-water explosion.
However, even though single event detonations do not result in
behavioral response by marine mammals (see 66 FR 22450, May 3, 2001),
there is a possibility that other Level B harassment (e.g., a temporary
shift in hearing threshold) could occur at greater distances than
provided by these safety zones. For that reason, an IHA is warranted.
In the Turning Basin or any area where explosives are required to
obtain channel design depth, marine mammal/sea turtle protection
measures will be employed by the Corps. For each explosive charge, the
Corps proposes that detonation will not occur if a marine mammal is
sighted by a dedicated marine mammal/sea turtle observer within the
caution zone, a circular area around the detonation site with the
following radius: R = 260(W)1/3 (260 times the cube root of the weight
of the explosive charge in pounds) where: R = radius of the danger zone
in ft; W = weight of the explosive charge in lbs). Although the area
described by the above equation is considered to be an area for
potential mortality, the Corps believes that because all explosive
charges will be stemmed (placed in a drilled hole and tamped with
rock), the areas for potential mortality and injury will be
significantly smaller than this area and therefore it is unlikely that
even non-serious injury would occur if monitoring this zone is
effective. (Since bottlenose dolphins are commonly found on the surface
of the water, implementation of a mitigation/ monitoring program is
expected by NMFS to be close to 100 percent effective).
According to the Corps, bottlenose dolphins and other marine
mammals have not been documented as being directly affected by dredging
activities and therefore the Corps does not anticipate any incidental
harassment of bottlenose dolphins by dredging.
Potential Effects on Habitat
The Corps expects the effects on marine mammal habitat to be
minimal. The bottom of the basin is rock and sand, and the walls of the
Turning Basin are vertical rock. The Corps also believes that the area
of the Turning Basin may not be suitable habitat for dolphins in
Biscayne Bay, but it is more likely that the animals use the area to
traverse to North Biscayne Bay or offshore via the main port channel.
In addition, as a large number of fish are not expected to perish
during the detonations, there will not be a significant effect on
dolphins' food supply (T. Jordan, pers. comm, 2002).
Mitigation and Monitoring
The Corps proposes to implement mitigation measures and a
monitoring program that will establish both danger- and caution-zone
radii to ensure that bottlenose dolphins will not be injured during
blasting and that impacts will be at the lowest level practicable.
Mitigation measures include: (1) confining the explosives in a hole
with drill patterns restricted to a minimum of 8 ft (2.44 m) separation
from any other
[[Page 7986]]
loaded hole; (2) restricting the hours of detonation from 2 hours after
sunrise to 1 hr before sunset to ensure adequate observation of marine
mammals and sea turtles in the safety zone; (3) staggering the
detonation for each explosive hole in order to spread the explosive's
total overpressure over time, which in turn will reduce the danger zone
radius; (4) capping the hole containing explosives with rock in order
to reduce the outward potential of the blast, thereby reducing the
chance of injuring a dolphin or sea turtle; (5) matching, to the extent
possible, the energy needed in the ``work effort'' of the borehole to
the rock mass to minimize excess energy vented into the water column;
and (6) conducting a marine mammal/sea turtle watch with no less than
two qualified observers from a small water craft and/or an elevated
platform on the explosives barge, at least 30 minutes before and
continue for 30 minutes after each detonation to ensure that there are
no dolphins or sea turtles in the area at the time of detonation. The
observer monitoring program will take place in a circular area at least
three times the radius of the above described caution/safety zone
(called the watch zone). Any marine mammal(s) in the danger zone or the
watch zone will not be forced to move out of those zones by human
intervention. Detonation shall not occur until the animal(s) move(s)
out of the danger zone on its own volition.
In the unlikely event a marine mammal or marine turtle is injured
or killed during blasting, the Contractor shall immediately notify the
NMFS Regional Office.
Reporting
The Corps would like to have contractors complete the proposed
activities in no more than 24 months from start date. Therefore, NMFS
is proposing to issue a 1-year IHA with the possibility for renewal
upon application from the Corps. NMFS proposes to require the Corps to
submit a report of activities 120 days before the expiration of the
proposed IHA if the Corps plans to request a renewal of its IHA, or 120
days after the expiration of the IHA if a renewal is not being
requested.
Endangered Species Act
Under section 7 of the ESA, NMFS has begun consultation on the
proposed issuance of an IHA under section 101(a)(5)(D) of the MMPA for
this activity. Consultation will be concluded upon completion of the
comment period and consideration of those comments prior to a
determination on issuance of an IHA.
National Environmental Policy Act
In accordance with section 6.01 of the National Oceanic and
Atmospheric Administration (NOAA) Administrative Order 216-6
(Environmental Review Procedures for Implementing the National
Environmental Policy Act, May 20, 1999), NMFS has analyzed both the
context and intensity of this action and determined, based on a
programmatic NEPA assessment conducted on the impact of NMFS'
rulemaking for the issuance of IHAs (61 FR 15884; April 10, 1996); the
Corps' 1989 Environmental Impact Statement and Feasibility Report for
the Navigation Study for the Miami Harbor Channel; and the contents,
results, and analyses of the Corps' blasting project, will not
individually or cumulatively result in a significant impact on the
quality of the human environment as defined in 40 CFR 1508.27.
Therefore, based on this analysis, the action of issuing an IHA
governing the incidental taking of marine mammals, by harassment for
this activity meets the definition of a ``Categorical Exclusion'' as
defined under NOAA Administrative Order 216-6 and is exempted from
further environmental review.
Preliminary Conclusions
NMFS has preliminarily determined that the short-term impact as
described in this document, should result, at worst, in the temporary
modification in behavior by bottlenose dolphins. While behavioral
modifications, including temporarily vacating the area, may be made by
these species to avoid the resultant visual and acoustic disturbance
from dredging and detonations, this action is expected to have a
negligible impact on the animals. In addition, no take by injury and/or
death is anticipated, and harassment takes will be at the lowest level
practicable due to incorporation of the mitigation measures mentioned
previously in this document.
Proposed Authorization
NMFS proposes to issue an IHA to the Corps for the potential
harassment of small numbers of bottlenose dolphins incidental to
deepening the Dodge-Lummus Island Turning Basin in Miami, FL (Turning
Basin), provided the previously mentioned mitigation, monitoring, and
reporting requirements are incorporated. NMFS has preliminarily
determined that the proposed activity would result in the harassment of
only small numbers of bottlenose dolphins and will have no more than a
negligible impact on this marine mammal stock.
Information Solicited
NMFS requests interested persons to submit comments, information,
and suggestions concerning this request (see ADDRESSES).
Dated: February 12, 2003.
Laurie K. Allen,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 03-3989 Filed 2-18-03; 8:45 am]
BILLING CODE 3510-22-S