03-13426. 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 issuance of an incidental harassment authorization.

SUMMARY:

In accordance with provisions of the Marine Mammal Protection Act (MMPA), notification is hereby given that an Incidental Harassment Authorization (IHA) has been issued to the U.S. Army Corps of Engineers-Jacksonville District (Corps) to take small numbers of bottlenose dolphins (Tursiops truncatus), by harassment, incidental to deepening the Dodge-Lummus Island Turning Basin in Miami, FL (Turning Basin).

DATES:

This authorization is effective from May 22, 2003, through May 22, 2004.

ADDRESSES:

A copy of the application may be obtained by writing to Kimberly Skrupky, Office of Protected Species, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, Md 20910, or by telephoning the contact listed here.

FOR FURTHER INFORMATION CONTACT:

Kenneth R. Hollingshead, NMFS, [phone], 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.

NMFS has found 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 [“Level A harassment”]; or (ii) 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 [“Level B harassment”].

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.

On June 24, 2002, NMFS received a request from the Corps for an IHA to take bottlenose dolphins, by harassment, incidental to deepening the Turning Basin in the Port of Miami, south of Dodge-Lummus Island. The Corps has formulated equations for confined charges, based on the Navy Diver Formula, to determine zone radii for three zones:

Caution Zone Radius = 260(lbs explosives/delay)^1/3

Safety Zone Radius = 520 (lbs explosives/delay)^1/3

Watch Zone Radius = 3(260(lbs explosives) 1/3)

The Caution Zone is the radius from an open-water blast where mortality will not occur. Detonation will not occur if a marine mammal is known to be within this area. The Safety Zone is the radius from an open-water blast where injury will not occur. The Watch Zone is three times the Caution Zone where observers will conduct a watch before and after the detonation.

A notice of receipt of the application and proposed authorization was published on February 6, 2003 (68 FR 6116). That notice described the activity and anticipated effects on marine mammals. NMFS received one comment letter from the Marine Mammal Commission (Commission) on the application and proposed authorization.

Comment 1: The Commission agrees that, unless animals are close to the source or exposure is frequent, the actions are negligible. They note, however, that it would be useful if NMFS or the applicant conducted pre- and post- blast surveys, and monitored and mapped the distribution of high-intensity sound resulting from the shallow-water blasts.

Response: NMFS recognizes that while acoustic measurements would be helpful, they too expensive relative to this single blasting project. Surveys will be conducted both prior to and post-blasting. A marine mammal watch will be conducted by no less than 2 qualified observers from a small watercraft at for at least 30 minutes before and after the time of each detonation, in the watch zone calculated for an open water blast.

Comment 2: Survey data may be available concerning the numbers of dolphins and other marine mammals in, and their use of, the Dodge-Lummus Island Turning Basin area. If so, they should be provided to NMFS. If not, NMFS may want to require that the applicant conduct such surveys prior to initiating the proposed activities.

Response: The Corps provided information regarding a survey conducted by the NMFS, Southeast Fisheries Science Center, Miami Laboratory. NMFS has been conducting a photo-identification survey of the dolphins in Biscayne Bay since 1990. The study area encompasses an area of approximately 200 mi2. This study area ranged from Haulover Inlet south to the Card Sound Bridge behind Key Largo. The study has identified 159 individual animals residing in Biscayne Bay, 146 of which have been resighted on at least one additional time. Many of these animals have been sighted within or transiting through the Port of Miami. Population studies conducted by the Southeast Fisheries Science Center have found that the size of the subpopulation of bottlenose dolphins in Biscayne averages between 78 and 92 individuals (Joe Contillo, pers. com. May 5, 2003).

Comment 3: NMFS should advise the Corps that manatees have been observed in this area. If there is the potential that manatees will also be taken incidental to the proposed activities, authorization for such taking would be needed from the U.S. Fish and Wildlife Service.

Response: The Corps completed consultation with the USFWS for this project on June 19, 2002. The USFWS concurred with the Corps that activities associated with the Corps' dredging project in the D-L-I Turning Basin were not likely to adversely affect listed species.

Comment 4: An across-the-board definition of temporary threshold shift (TTS) as constituting no more than Level B harassment inappropriately dismisses possible injury and biologically significant behavioral effects (e.g., an increased risk of natural predation or ship strikes) that can result from repeated TTS harassment and from the cumulative effects of long-term exposure. The Commission therefore reiterated it recommendation that TTS be considered as having the potential to injure marine mammals (i.e., Level A harassment).

Response: NMFS has addressed the concern of the definition of TTS in previous small take authorizations (66 FR 22450, May 4, 2001; 67 FR 46712, July 16, 2002). These authorizations state that the best scientific information available supports NMFS' determination that TTS results in Level B harassment, rather than Level A harassment. Because TTS is unlikely to occur in bottlenose dolphins from this project (due to mitigation and monitoring discussed in this document), additional discussion is not warranted at this time.

Mitigation and Monitoring

NMFS is requiring the Corps to implement mitigation measures and a monitoring program that will establish 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 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 caution 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, for at least 30 minutes before and 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 the watch zone. Any marine mammal in the caution 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 moves out of the caution zone on its own volition.

In the unlikely event a marine mammal or marine turtle is injured or killed during blasting, the Contractor shall notify the Corps and the NMFS Regional Office within 48 hours. In addition, the Contractor will also notify the Florida Marine Patrol and the USFWS in Vero Beach.

Reporting

The Corps anticipates completing the proposed activities within 24 months of the start date. Therefore, NMFS is issuing a 1-year IHA with the possibility for renewal upon application from the Corps. NMFS requires 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, the Corps completed consultation with NMFS on September 23, 2002, and with the USFWS on June 19, 2002, for this project. Both agencies found that activities associated with the Corps' dredging project in the Dodge-Lummus Island Turning Basin were not likely to adversely affect listed species.

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 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, that this IHA will not individually or cumulatively result in a significant impact on the quality of the human environment as defined in 40 CFR 1508.27. Accordingly, this action qualifies for a categorical exemption and is exempted from further environmental review under NOAA Administrative Order 216-6.

Conclusions

NMFS determined that the short-term impact as described in the proposed authorization (68 FR 6116, February 6, 2003), should result, at worst, in the temporary modification in behavior by bottlenose dolphins. Although behavioral modifications, including temporarily vacating the area, may be made by this species to avoid the resultant visual and acoustic disturbance from dredging and detonations, this action is expected to have a negligible impact on the affected species or stocks. 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.

Authorization

NMFS has issued an IHA to the Corps for the potential harassment of small numbers of bottlenose dolphins incidental to deepening the Turning Basin in Miami, FL, provided the previously described mitigation, monitoring, and reporting requirements are met. NMFS has determined that the activity would result in the Level B harassment of only small numbers of bottlenose dolphins and will have no more than a negligible impact on this marine mammal stock.

Dated: May 22, 2003.

Donna Wieting,

Acting Director, Office of Protected Resources, National Marine Fisheries Service.