[Federal Register Volume 63, Number 9 (Wednesday, January 14, 1998)]
[Notices]
[Pages 2213-2216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-806]
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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
[[Page 2214]]
(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,
[[Page 2216]]
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]
BILLING CODE 3510-22-F
