Takes of Marine Mammals Incidental To Specified Activities; Taking Marine Mammals Incidental to a Tidal Marsh Restoration Project, 16800-16808 [2017-06791]
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Federal Register / Vol. 82, No. 65 / Thursday, April 6, 2017 / Notices
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Takes of Marine Mammals Incidental
To Specified Activities; Taking Marine
Mammals Incidental to a Tidal Marsh
Restoration Project
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; issuance of an incidental
harassment authorization.
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AGENCY:
In accordance with the
regulations implementing the Marine
Mammal Protection Act (MMPA) as
amended, notification is hereby given
that NMFS has issued an incidental
harassment authorization (IHA) to the
California Department of Fish and
Wildlife—Central Region (CADFW) to
SUMMARY:
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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 MMPA
established an expedited process by
which citizens of the U.S. can apply for
an authorization to incidentally take
small numbers of marine mammals by
harassment. Section 101(a)(5)(D)
establishes a 45-day time limit for
Availability
NMFS review of an application
An electronic copy of the CADFW’s
followed by a 30-day public notice and
application and supporting documents,
comment period on any proposed
as well as a list of the references cited
authorizations for the incidental
in this document, may be obtained
harassment of marine mammals. Within
online at: www.nmfs.noaa.gov/pr/
45 days of the close of the comment
permits/incidental/construction.htm. In period, NMFS must either issue or deny
case of problems accessing these
the authorization. Except with respect to
documents, please call the contact listed certain activities not pertinent here, the
above.
MMPA defines ‘‘harassment’’ as ‘‘any
act of pursuit, torment, or annoyance
National Environmental Policy Act
which (i) has the potential to injure a
In accordance with the National
marine mammal or marine mammal
Environmental Policy Act (NEPA) (42
stock in the wild (Level A harassment);
U.S.C. 4321 et seq.), NMFS prepared a
or (ii) has the potential to disturb a
Supplemental Environmental
marine mammal or marine mammal
Assessment (SEA) titled ‘‘Final
stock in the wild by causing disruption
Supplemental Environmental
of behavioral patterns, including, but
Assessment for the Minhoto-Hester
not limited to, migration, breathing,
Marsh Restoration Project, Elkhorn
nursing, breeding, feeding, or sheltering
Slough, Monterey County, California.’’ A (Level B harassment).’’
Finding of No Significant Impact
Summary of Requests
(FONSI) was signed on November 15,
2016. NMFS considered comments
On June 2, 2016, we received an
submitted in response to our Federal
application from the CADFW for
Register notice of the proposed IHA (81 authorization to take marine mammals
FR 67297; September 30, 2016) and
incidental to construction activities
CADFW’s application as part of the
associated with a 47-acre tidal marsh
process. All documents are available at
restoration project within the Minhotothe aforementioned Web site.
Hester Marsh in Elkhorn Slough
(Monterey, CA) (Phase 1). The overall
Background
Elkhorn Slough Tidal Marsh Restoration
Sections 101(a)(5)(D) of the MMPA
Project will restore a total of 147 acres,
(16 U.S.C. 1361 et seq.) direct the
however, future phases are not part of
Secretary of Commerce to allow, upon
this application as they are currently
request by U.S. citizens who engage in
unfunded and present some additional
a specified activity (other than
technical challenges. Another IHA
commercial fishing) within a specified
request will be made prior to
geographical region if certain findings
implementation of any proposed future
are made and either regulations are
phases. The CADFW submitted revised
issued or, if the taking is limited to
versions of the application on July 13,
harassment, a notice of a proposed
2016, August 2, 2016, August 29, 2016,
authorization was provided to the
and a final application on September 6,
public for review.
2016 which we deemed adequate and
Authorization for incidental takings
complete.
The activity will begin August 1, 2017
shall be granted if NMFS finds that the
and last approximately 11 months with
taking will have a negligible impact on
built in buffers for adverse weather and
the species or stock(s), will not have an
other conditions when work is not
unmitigable adverse impact on the
availability of the species or stock(s) for possible. Pacific harbor seal (Phoca
subsistence uses (where relevant), and if vitulina richardii) and southern sea
otters (Enhydra lutris nereis) are
the permissible methods of taking and
expected to be present during the work.
requirements pertaining to the
Southern sea otters are managed by the
mitigation, monitoring and reporting of
U.S. Fish and Wildlife Service and will
such takings are set forth. NMFS has
incidentally harass, by Level B
harassment only, marine mammals
during construction activities associated
with the tidal marsh restoration project
within the Minhoto-Hester Marsh in
Elkhorn Slough (Monterey, CA).
DATES: This Authorization is in effect
for one year beginning August 1, 2017.
FOR FURTHER INFORMATION CONTACT:
Stephanie Egger, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
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Federal Register / Vol. 82, No. 65 / Thursday, April 6, 2017 / Notices
not be considered further in this IHA.
Construction activities are expected to
produce noise and visual disturbance
that have the potential to result in
behavioral harassment of harbor seals.
Description of the Specified Activities
A detailed description of the project
is provided in the Federal Register
notice for the proposed IHA (81 FR
67297; September 30, 2016). Since that
time, no changes have been made to the
planned construction activities.
Therefore, a detailed description is not
provided here. Please refer to that
Federal Register notice for the
description of the specific activity.
The CADFW proposes to restore
approximately 47 acres of tidal marsh
within the Minhoto-Hester Marsh in
Elkhorn Slough (Monterey, CA) and
additional tidal marsh, upland ecotone,
native grasslands restoration within a
buffer area (Phase 1). The CADFW
intends to restore tidal marsh to reduce
tidal erosion, improve water quality,
provide sea-level rise resilience,
increase carbon sequestration, and
improve ecosystem function that have
been altered by past land use practices.
Under the planned action, 132 days of
construction activities and four days of
vibratory pile driving (total 136 days of
project activities) related to the tidal
marsh restoration will occur over an 11month period.
Comments and Responses
A notice of NMFS’s proposal to issue
an IHA to CADFW was published in the
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Federal Register on September 30, 2016
(81 FR 67297). That notice described, in
detail, CADFW’s activity, the marine
mammal species that may be affected by
the activity, and the anticipated effects
on marine mammals. During the 30-day
public comment period, NMFS received
comments from the Marine Mammal
Commission. The Marine Mammal
Commission recommended that NMFS
issue the IHA, and concurred with the
planned mitigation, monitoring, and
reporting measures.
Description of Marine Mammals in the
Area of the Specified Activity
The marine mammal species under
NMFS jurisdiction occurring in the
project area is the Pacific harbor seal
(see Table 1).
TABLE 1—HARBOR SEAL STATUS INFORMATION
Species
ES)/MMPA status;
strategic (Y/N) 1
Stock
Stock abundance
(CV, Nmin, most recent abundance survey) 2
Annual M/
SI 4
PBR 3
Relative occurrence
in Elkhorn Slough;
season of occurrence
Family Phocidae (earless seals)
Harbor seal ........
California ...........
-; N ......................
30,968 (n/a; 27,348; 2012)
1,641
42.8
Common; year-round
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1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is
not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct
human-caused mortality exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the
foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
2 CV is coefficient of variation; N
min is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks of
pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from
knowledge of the species (or similar species) life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these
cases, the minimum abundance may represent actual counts of all animals ashore. The most recent abundance survey that is reflected in the
abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate.
3 Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
4 These values, found in NMFS’ SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a
minimum value. All values presented here are from the final 2015 Pacific SAR. (https://www.nmfs.noaa.gov/pr/sars/region.htm).
A detailed description of the harbor
seal likely to be affected by the
restoration project, including a brief
introduction to the species and relevant
stock as well as available information
regarding population trends and threats,
and information regarding local
occurrence, were provided in the
Federal Register notice for the proposed
IHA (81 FR 67297; September 30, 2016);
since that time, we are not aware of any
changes in the status of this species and
stock; therefore, detailed descriptions
are not provided here. Please refer to
that Federal Register notice for these
descriptions. Please also refer to NMFS’
Web site (https://
www.fisheries.noaa.gov/pr/species/
mammals/seals/harbor-seal.html) for
the generalized harbor seal account and
see NMFS’ Stock Assessment Reports
(SAR), available at www.nmfs.noaa.gov/
pr/sars, for more detailed accounts of
the harbor seal stocks’ status and
abundance. The harbor seal is assessed
in the Pacific SAR (Carretta et al., 2016).
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Potential Effects of the Specified
Activity on Marine Mammals
The effects of noise and visual
disturbance from construction activities
for the project have the potential to
result in behavioral harassment of
marine mammals in the vicinity of the
action area. The Federal Register notice
for the proposed IHA (81 FR 67297;
September 30, 2016) included a
discussion of the effects of
anthropogenic noise on marine
mammals; therefore, that information is
not repeated here.
In summary, harbor seals that use the
four haul out sites, just beyond the
footprint of the construction, area and in
other nearby areas may potentially
experience behavioral disruption rising
to the level of harassment (Level B) from
construction activities, which may
include visual disturbance due to the
presence and activity of heavy
equipment and construction workers,
airborne noise from the equipment, and
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from underwater noise during the brief
period of sheet pile installation.
Disturbed seals are likely to experience
any or all of these stimuli, and take may
occur due to any of these in isolation or
in combination with the others.
Anticipated Potential Effects on Marine
Mammal Habitat
The main impact to marine mammal
habitat associated with the CADFW’s
restoration project is the temporary
exclusion from the accustomed haul out
areas. During the restoration, the
inability of seals to use suitable habitat
within the footprint of the construction
area will temporarily remove less than
two percent of the potential haul out
areas in the Slough (see Figure 4–4 of
the application). Although the action
will permanently alter habitat within
the footprint of the construction area,
harbor seals haul out in many locations
throughout the estuary, and the
activities are not expected to have any
habitat-related effects that could cause
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Federal Register / Vol. 82, No. 65 / Thursday, April 6, 2017 / Notices
significant or long-term consequences
for individual harbor seals or their
population. Potential effects to marine
mammal habitat are discussed in detail
in the Federal Register notice for the
proposed IHA (81 FR 67297; September
30, 2016), therefore that information is
not repeated here; please refer to that
Federal Register notice for that
information.
Mitigation
In order to issue an IHA under section
101(a)(5)(D) of the MMPA, NMFS must
set forth the permissible methods of
taking pursuant to such activity, and
other means of effecting the least
practicable impact on such species or
stock and its habitat, paying particular
attention to rookeries, mating grounds,
and areas of similar significance, and on
the availability of such species or stock
for taking for certain subsistence uses
(where relevant). CADFW shall
implement the following mitigation
measures:
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Timing Restrictions
Construction work shall occur only
during daylight hours when visual
monitoring of marine mammals can be
implemented. No in-water work will be
conducted at night.
Construction Activities
After sheet piles are installed, it will
be unlikely that harbor seals will be able
to access the construction area and will
temporarily be displaced from using the
four haul outs within the footprint of
the construction area. Should seals
attempt to enter the construction area,
they will need to traverse a minimum
7ft high berm into an area without
water. If a seal enters the construction
area after installation of barriers,
CADFW shall use a government official
to flush any such seals from the area for
purposes of protection/welfare of the
animals (as allowed through section
109(h) of the MMPA). The NMFS’ West
Coast Regional Office and The Marine
Mammal Center (Rescue and Response)
will be available should this occur. In
addition, to reduce the risk of
potentially startling marine mammals
with a sudden intensive sound, the
contractor shall begin construction
activities gradually each day by moving
around the project area and starting
heavy equipment one at a time.
Pupping Season
While CADFW does not anticipate
any pupping within the project area,
should a pup less than one week old
(neonate) come within 20 m of where
heavy machinery is working,
construction activities in that area will
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be delayed until the pup has left the
area. In the event that a pup less than
one week old remains within those 20
m, NMFS will be consulted to
determine the appropriate course of
action.
Vibratory Pile Driving
An exclusion zone of 15 m shall be
established during the 4 days of pile
driving to prevent the unlikely potential
for physical injury of harbor seals due
to close approach to construction
equipment. Pile extraction or driving
shall not commence (or re-commence
following a shutdown) until marine
mammals are not sighted within the
exclusion zone for a 15-minute period.
If a marine mammal enters the
exclusion zone during sheet pile work,
work shall stop until the animal leaves
the exclusion zone or is not observed for
a minimum of 15 minutes.
Based on our evaluation of the
mitigation measures, as well as any
other potential measures that may be
relevant to the specified activity, we
have determined that the mitigation
measures provide the means of effecting
the least practicable impact on marine
mammal species or stocks and their
habitat, paying particular attention to
rookeries, mating grounds, and areas of
similar significance.
Monitoring and Reporting
In order to issue an IHA for an
activity, section 101(a)(5)(D) of the
MMPA states that NMFS must set forth
‘‘requirements pertaining to the
monitoring and reporting of such
taking’’. The MMPA implementing
regulations at 50 CFR 216.104(a)(13)
indicate that requests for incidental take
authorizations must include the
suggested means of accomplishing the
necessary monitoring and reporting that
will result in increased knowledge of
the species and of the level of taking or
impacts on populations of marine
mammals that are expected to be
present in the action area.
Any monitoring requirement we
prescribe should improve our
understanding of one or more of the
following:
• Occurrence of marine mammal
species in the action area (e.g., presence,
abundance, distribution, density).
• Nature, scope, or context of likely
marine mammal exposure to potential
stressors/impacts (individual or
cumulative, acute or chronic), through
better understanding of: (1) Action or
environment (e.g., source
characterization, propagation, ambient
noise); (2) Affected species (e.g., life
history, dive patterns); (3) Co-
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occurrence of marine mammal species
with the action; or (4) Biological or
behavioral context of exposure (e.g., age,
calving or feeding areas).
• Individual responses to acute
stressors, or impacts of chronic
exposures (behavioral or physiological).
• How anticipated responses to
stressors impact either: (1) Long-term
fitness and survival of an individual; or
(2) Population, species, or stock.
• Effects on marine mammal habitat
and resultant impacts to marine
mammals.
• Mitigation and monitoring
effectiveness.
Monitoring—Visual Marine Mammal
Observations
Qualified Protected Species Observers
(PSO) (a NMFS approved biologist) shall
be used to detect, document, and
minimize impacts to marine mammals.
Monitoring shall be conducted before,
during, and after construction activities.
In addition, PSOs shall record all
incidents of marine mammal
occurrence, regardless of distance from
activity, and document any behavioral
reactions in concert with distance from
construction activities.
Important qualifications for PSOs for
visual monitoring include:
• Visual acuity in both eyes
(correction is permissible) sufficient for
discernment of harbor seals on land or
in the water with ability to estimate
target size and distance; use of
binoculars may be necessary to correctly
identify the target;
• Advanced education in biological
science or related field (undergraduate
degree or higher required);
• Experience and ability to conduct
field observations and collect data
according to assigned protocols (this
may include academic experience);
• Experience or training in the field
identification of marine mammals,
including the identification of
behaviors;
• Sufficient training, orientation, or
experience with the construction
operation to provide for personal safety
during observations;
• Writing skills sufficient to prepare a
report of observations including but not
limited to the number and species of
marine mammals observed; dates and
times when construction activities were
conducted; dates and times when
construction activities were suspended,
if necessary; and marine mammal
behavior; and
• Ability to communicate orally, by
radio or in person, with project
personnel to provide real-time
information on marine mammals
observed in the area as necessary.
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PSOs shall be placed at the best
vantage point(s) (e.g., Yampah Island,
see Figure 2 of the monitoring plan in
the application) practicable to monitor
for marine mammals. PSOs shall also
conduct mandatory biological resources
awareness training for construction
personnel. The awareness training shall
be provided to brief construction
personnel on marine mammals
(inclusive of identification as needed,
e.g., neonates) and the need to avoid
and minimize impacts to marine
mammals. If new construction
personnel are added to the project, the
contractor shall ensure that the
personnel receive the mandatory
training before starting work. The PSO
shall have the authority to stop
construction if marine mammals appear
distressed (evasive maneuvers, rapid
breathing, inability to flush) or in
danger of injury.
CADFW developed a monitoring plan
based on discussions between the
CADFW and NMFS. CADFW shall
collect sighting data and behavioral
responses to construction activities for
marine mammal species observed in the
region of activity during the period of
activity. All PSOs shall be trained in
marine mammal identification and
behaviors and are required to have no
other construction-related tasks while
conducting monitoring.
The monitoring plan involves PSOs
surveying and conducting visual counts
beginning prior to construction
activities (beginning at least 30 minutes
prior to construction activities), hourly
monitoring during construction
activities, and post-activity monitoring
(continuing for at least 30 minutes after
construction activities have ended).
PSOs shall conduct monitoring from a
vantage point in the marsh (e.g.,
Yampah Island) such that all seal haul
outs (see Figure 2 of the monitoring plan
in the application) are in full view.
During construction activities,
monitoring shall assess behavior and
potential behavioral responses to noise
and visual disturbance due to the
activities. To document disturbance and
possible incidental take during
construction activities, the monitoring
protocols shall be implemented at all
times when work is occurring either (1)
in-water, (2) north of a line starting at
36°48′38.91 N. 121°45′08.03 W. and
ending 36°48′38.91 N. 121 °45′27.11 W.
(see Figure 1 of the monitoring plan in
the application), or (3) within 30.5 m
(100 ft) of tidal waters. When work is
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occurring in other areas, monitoring
shall occur for the first three days of
construction and anytime there is a
significant change in activities or
location of construction activities
within the project area. If disturbance is
noted at any time, then monitoring shall
continue until there are three successive
days of no disturbance. If there is a gap
in construction activities of more than
one week, the monitoring protocols
shall again be implemented for the first
three days that construction resumes.
Counts shall be performed for harbor
seals hauled out and observed in the
water. Total counts, sex, and age (adult,
juvenile, pup) shall be recorded.
Behavioral monitoring shall be
conducted for the duration of the
construction activities to document any
behavioral responses to visual (or other)
disturbance, according to the
disturbance scale shown in Table 2
below. When responses are observed,
the degree of response (i.e., alert and
flush, movement of more than one m, or
change in direction of movement) and
the assumed cause (whether related to
construction activities or not) will be
noted. Only responses at Level 2 and 3
are considered to be take under the
MMPA.
TABLE 2—SEAL RESPONSE TO DISTURBANCE
Type of response
Definition
1 ........................
Alert ....................................
2 ........................
Movement ...........................
3 ........................
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Level
Flush ...................................
Seal head orientation or brief movement in response to disturbance, which may include turning
head towards the disturbance, craning head and neck while holding the body rigid in a ushaped position, changing from a lying to a sitting position, or brief movement of less than
twice the animal’s body length. Alerts will be recorded, but not counted as a ‘take’.
Movements away from the source of disturbance, ranging from short withdrawals at least twice
the animal’s body length to longer retreats, or if already moving a change of direction of
greater than 90 degrees. These movements will be recorded and counted as a ‘take’.
All retreats (flushes) to the water. Flushing into the water will be recorded and counted as a
‘take’.
Additional parameters shall be
recorded including: Atmospheric
conditions, cloud cover, visibility
conditions, air and water temperature,
tide height, and any other disturbance
(visual or noise) that may be noted. We
require that PSOs use approved data
forms. Among other pieces of
information, CADFW shall record
detailed information about any
implementation of shutdowns,
including the distance of animals to
construction activities and description
of specific actions that ensued and
resulting behavior of the animal, if any.
In addition, CADFW shall attempt to
distinguish between the number of
individual animals taken and the
number of incidents of take. Additional
requirements of PSOs include:
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(1) The PSO shall be selected prior to
construction activities;
(2) The PSO shall attend the project
site prior to, during, and after
construction activities cease each day
that the construction activities occur (as
outlined in the monitoring plan);
(3) The PSO shall search for marine
mammals on the seal haul outs, other
suitable haul out habitat, and within the
waters of this area from the observation
site. PSOs shall use binoculars and the
naked eye to search continuously for
marine mammals;
(4) The PSO shall be present during
construction activities to observe for the
presence of marine mammals in the
vicinity of the specified activity (as
outlined in the monitoring plan). All
such activity will occur during daylight
hours. If inclement weather limits
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visibility within the area of effect, the
PSO will perform visual scans to the
extent conditions allow. For pile driving
activities, if the 15 m area around the
pile driving is obscured by fog or poor
lighting conditions, pile driving shall
not be initiated until that area is visible;
(5) If marine mammals are sighted by
the PSO, the PSO shall record the
number of marine mammals and the
duration of their presence while the
construction activity is occurring. The
PSO shall also note whether the marine
mammals appeared to respond to the
noise/visual disturbance and, if so, the
nature of that response. The PSO shall
record the following information; date
and time of initial sighting, tidal stage,
weather conditions, species, behavior
(e.g., foraging, mating, etc.), group
cohesiveness, direction and speed of
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travel, etc., number, tagged animals,
whether the animal(s) are in the water
or hauled out, group composition,
distance between construction activities
and marine mammal(s), number of
animals impacted, location,
construction activities occurring at time
of sighting (earth moving equipment,
construction personnel walking/talking,
pile driving etc.), and monitoring and
mitigation measures implemented or not
implemented). The observations shall be
reported to NMFS; and
(6) A final report shall be submitted
summarizing all effects from
construction activities and marine
mammal monitoring during the time of
the authorization.
A written log of dates and times of
monitoring activity shall be kept. The
log shall report the following
information:
• Time of PSO arrival on site;
• Time of the commencement of
construction activities;
• Distances to all marine mammals
relative to the disturbance;
• Observations, notes on marine
mammal behavior during construction
activities, as described above, and on
the number and distribution observed in
the project vicinity;
• For observations of all other marine
mammals (if observed) the time and
duration of each animal’s presence in
the project vicinity; the number of
animals observed; the behavior of each
animal, including any response to
construction activities;
• Time of the cessation of
construction activities; and
• Time of PSO departure from site.
Individuals implementing the
monitoring protocol shall assess its
effectiveness using an adaptive
approach. PSOs shall use their best
professional judgment throughout
implementation and seek improvements
to these methods when deemed
appropriate. Any modifications to
protocol shall be coordinated between
NMFS and the CADFW.
Reporting
A draft report shall be submitted to
NMFS within 90 days of the completion
of marine mammal monitoring, or sixty
days prior to the issuance of any
subsequent IHA for this project (if
required), whichever comes first. The
report shall include marine mammal
observations pre-activity, duringactivity, and post-activity of
construction, and will also provide
descriptions of any behavioral responses
by marine mammals due to disturbance
from construction activities and a
complete description of total take
estimate based on the number of marine
mammals observed during the course of
construction. A final report shall be
submitted within thirty days following
resolution of comments on the draft
report.
Estimated Take by Incidental
Harassment
Except with respect to certain
activities not pertinent here, section
3(18) of 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).’’
All anticipated takes will be by Level
B harassment resulting from
construction activities involving
temporary changes in behavior. It is
unlikely that injurious or lethal takes
will occur even in the absence of the
planned mitigation and monitoring
measures. Further, the mitigation and
monitoring measures are expected to
minimize the possibility of take by
Level A harassment, such that it is
considered discountable.
Given the many uncertainties in
predicting the quantity and types of
impacts of sound or visual disturbance
on marine mammals, it is common
practice to estimate how many animals
are likely to be present within a
particular distance of a given activity, or
exposed to a particular level of sound or
visual disturbance. In practice,
depending on the amount of
information available to characterize
daily and seasonal movement and
distribution of affected marine
mammals, it can be difficult to
distinguish between the number of
individuals harassed and the instances
of harassment and, when duration of the
activity is considered, it can result in a
take estimate that overestimates the
number of individuals harassed. In
particular, for stationary activities, it is
more likely that some smaller number of
individuals may accrue a number of
incidences of harassment per individual
than for each incidence to accrue to a
new individual, especially if those
individuals display some degree of
residency or site fidelity and the
impetus to use the site (e.g., because of
foraging opportunities) is stronger than
the deterrence presented by the
harassing activity.
In order to estimate the potential
incidents of take that may occur
incidental to the specified activity, we
must first estimate the area subject to
the disturbance that may be produced
by the construction activities and then
consider in combination information
about harbor seals present and the
number of days animals will be
disturbed during the project. We then
provide information to estimate
potential incidents of take from
disturbance as related to construction
activities.
Introduction to Acoustic Criteria
We use generic sound exposure
thresholds to determine when an
activity that produces sound might
result in impacts to a marine mammal
such that a take by harassment might
occur. To date, no studies have been
conducted that explicitly examine
impacts to marine mammals from pile
driving sounds or from which empirical
sound thresholds have been established.
The generic thresholds described below
(Table 3) are used to estimate when
harassment may occur (i.e., when an
animal is exposed to levels equal to or
exceeding the relevant criterion) in
specific contexts. However, useful
contextual information that may inform
our assessment of effects is typically
lacking and we consider these
thresholds as step functions.
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TABLE 3—CURRENT ACOUSTIC EXPOSURE CRITERIA FOR PINNIPEDS
Criterion
Definition
Threshold
Level B harassment (underwater)
Level B harassment (airborne) .....
Behavioral disruption ..................
Behavioral disruption ..................
120 dB (non-impulse, continuous source, i.e., vibratory pile driving) (rms)
90 dB (harbor seals)
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Sound Produced From Construction
Activities
Any underwater noise produced
during pile driving in Minhoto-Hester
Marsh will attenuate according to the
shoreline topography. In a narrow and
relatively shallow slough, bends and
topographic changes in the bottom will
act to reflect sound and attenuate sound
levels. Seals within the project area,
from the sound source (vibratory pile
driving) to the north bank of the main
channel of Elkhorn Slough
(approximately 525–600 m; see Figure
6–4 in the application), may be
impacted by noise and were used as the
area to define Level B take estimates.
Seals may be exposed to underwater
noise that could cause behavioral
harassment (i.e., above NMFS’ 120–dB
(rms re 1 mPa) behavioral harassment
criterion) only within a small area (see
Figure 6–4 of the application). This
small section of channel defines the
extent of the potential Level B
harassment zone for underwater noise.
Restoration activities will produce
airborne noise that could potentially
harass harbor seals that are hauled out
near the activities. For example,
airborne noise produced from earth
moving equipment (i.e., backhoes, front
end loaders) for construction, may
produce sound levels at 80–90 dB at
15.24 m (Federal Highway
Administration, 2015). However,
disturbance resulting from use of heavy
equipment or other aspects of the work
could occur due to visual stimuli or
airborne noise, and the likely range
within which seals may be disturbed
will be larger than the range to the 90–
dB airborne noise disturbance criterion.
Therefore, we do not evaluate takes
specifically due to exposure to airborne
noise and do not discuss airborne noise
further in this document.
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Description of Take Calculation
The following sections are
descriptions of how take was
determined for impacts to harbor seals
from noise and visual disturbance
related to construction activities.
Incidental take is calculated for each
species by estimating the likelihood of
a marine mammal being present within
the project area during construction
activities. Expected marine mammal
presence is determined by past
observations and general abundance
during the construction window. For
this project, the take requests were
estimated using local marine mammal
data sets, and information from state
and federal agencies.
The calculation for marine mammal
exposures is estimated by:
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Exposure estimate = N (number of
animals in the area) * 132 days of
construction activities or 4 days of pile
driving activity
All estimates by the applicant and
accepted by NMFS, are considered
conservative. Construction activities
will occur in sections, and some
sections (e.g., M1) are further away from
seal haul outs (approximately 420 m
and greater). Noise from construction
activities in more southern sections of
the footprint of the construction area
may cause fewer disturbances to seals.
Not all seals that previously used the
haul outs within the footprint of the
construction area will use the haul outs
just outside the project. The channel is
small and the available habitat will
likely not be able to support all 100
seals of the Minhoto-Hester Marsh
Complex. Some seals may seek
alternative haul out habitat in other
parts of Elkhorn Slough. Pile driving
will only occur for a short duration (four
days) and will not be continuous during
the day (daylight hours only). Using this
approach, a summary of estimated takes
of harbor seals incidental the project
activities are provided in Table 4.
Estimates include Level B harassment as
a result of exposure to noise and visual
disturbance during construction
activities.
The best scientific information
available was considered for use in the
harbor seal take assessment
calculations. It is difficult to estimate
the number of harbor seals that could be
affected by construction activities
because the animals are mainly either in
the project area or venture near the
project area to haul out during the day
when the tide is low. Once the tidal
channel is blocked and four haul out
sites (Small Island, M2 North, M3 North
and M3 East) are inaccessible, some
seals will be able to use the alternative
four hauls outs (M5 Northeast, M5
Southeast, Yampah Northwest and
Yampah Southwest). Seals that use
these alternative four haul outs may be
potentially impacted from noise and
visual disturbance from construction
activities of the tidal marsh restoration,
but seals that normally use areas in the
interior tidal channel may use haul outs
that are outside the expected area of
influence of the construction activity.
Various types of construction
equipment (in addition to pile drivers)
will be utilized for project activities
such as dozers, loaders, and backhoes
that may generate sound that can cause
both noise and visual disturbance to
harbor seals. Although the exact
distance of all noise disturbances from
construction activities is unknown, it is
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anticipated that the disturbance area for
airborne noise will be small as earth
moving equipment (i.e., backhoes, front
end loaders) produce sound levels at
80–90 dB at 15.24 m and vibratory
driving of sheet piles at 90 dBA at 30
m (dBA can be defined as dB with Aweighting designed to match the average
frequency response of human hearing
and enables comparison of the intensity
of noise with different frequency
characteristics). The closest haul outs
that will be available to seals are 43–131
m outside the footprint of the
construction area. If seals are in the
water near the project or on available
haul outs there is a chance that seals
could be exposed to noise and/or visual
disturbance from the construction
activities. Construction activities may
impact seals using haul outs M5
Northeast, M5 Southeast, Yampah
Northwest and Yampah Southwest.
We assume that an average of 50
harbor seals will potentially occupy the
alternate haul outs based on the size of
the haul out habitat that is available.
Four haul outs (out of eight) will be
temporarily inaccessible during the
construction; therefore, half of the seals
(approximately 50 out of the 100 seals)
of the Minhoto-Hester Marsh Complex
will likely use the alternate four haul
outs and experience disturbance from
construction activities. It is presumed
that the other half of the seals (50 seals)
of the Minhoto-Hester March Complex
will utilize other suitable haul out
habitat within Elkhorn Slough and are
not considered available to be ‘‘taken’’
during construction activities (Monique
Fountain, Elkhorn Slough National
Estuarine Research Reserve, pers.
comm. 2016). We multiply this estimate
of the number of harbor seals potentially
available to be taken by the total number
of days (132 days) the applicant expects
construction activities to occur.
Therefore, NMFS authorizes 132
instances of takes for 50 harbor seals
(total of 6,600 instances) by Level B
harassment incidental to construction
activities (airborne noise and visual
disturbance) over the course of the
action if all of the estimated harbor seals
present are taken by incidental
harassment each day (Table 4). Note:
NMFS does not assume that the 50 seals
will be the same individuals taken
during each of the 132 days of
construction; rather some seals in the
area may be taken more times than
others if they stay in the area and do not
utilize other parts of the Slough.
While the pile driving activities are
planned to take place during slack tide
to the extent possible (when harbor
seals are less likely to be present), and
only for a short duration, there may still
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be animals exposed to disturbance from
pile driving even if the number of
individual harbor seals expected to be
encountered is very low. There are
approximately 100 harbor seals that
utilize Minhoto-Hester Marsh Complex
that may be disturbed during pile
driving activities. Additionally, there is
some potential that an additional 100
harbor seals that occur in the adjacent
Parson’s Slough Complex and Yampah
Marsh and 50 harbor seals that may be
present in the main channel of Elkhorn
Slough could also be disturbed. NMFS
authorizes four instances of take for 250
harbor seals (total of 1,000 instances) by
Level B harassment incidental to pile
driving activities over the course of the
action if all of the estimated harbor seals
present are taken by incidental
harassment each day. This is an
estimate based on the average number of
harbor seals that potentially occupy the
project area (and surrounding areas)
(250 seals) multiplied by the total
number of days (four days) the applicant
expects pile driving activities to occur
(Table 4). Note: NMFS does not assume
that the 250 seals will be the same
individuals taken during each of the
four days of construction; rather some
seals in the area may be taken more
times than others if they stay in the area
and do not utilize other parts of the
Slough. This is a very conservative
estimate, as not all the seals are likely
in or near the project area at the same
time, some of which are due to
environmental variables such as tide
level and the time of day. In the
Minhoto-Hester Marsh Complex, a
maximum daily average of 40 seals were
present in the project area (on Small
Island, M2 North, M3 North, and M3
East haul out sites) and 41 seals outside
the project area (on M5 Northeast, M5
Southeast, Yampah Northwest and
Yampah Southwest haul out sites)
during the 2013 surveys, which is
slightly less than the 100 seals that may
be taken. In addition, noise attenuates
quickly due to shallow water, tidal
influence and sinewy channels of
Elkhorn Slough. NMFS considers this to
be an conservative estimate by the
applicant for the following reasons: (1)
It will be unlikely that all 250 seals will
be in the vicinity of the project area
daily as there are other areas of the
Slough that they likely use to haul out
(see Figure 4–4 of the application); (2)
as mentioned above, the haul out sites
within the footprint of the construction
area will be inaccessible to harbor seals
and NMFS do not expect harbor seals to
be affected by pile driving activities
during the days/times when pile driving
and high tide events co-occur; (3) harbor
seals begin to leave the project area at
night when they are likely foraging in
Monterey Bay and will not be exposed
to sound generated during pile driving
that may take place during early evening
hours; and, (4) based on previous survey
effort conducted for the adjacent
Parson’s Slough project, some harbor
seals moved out of the disturbance area
when construction activities were
initiated and moved west (downstream)
towards Seal Bend or other areas of
suitable habitat along the main channel
of Elkhorn Slough (see Figure 4–4 of the
application).
TABLE 4—SUMMARY OF THE AUTHORIZED INCIDENTAL TAKE BY LEVEL B HARASSMENT OF HARBOR SEALS FROM PILE
DRIVING AND CONSTRUCTION ACTIVITIES
Estimated
number of
seals taken
per day of
activity
(seals)
Species
Pacific harbor seal .........................
Take authorization
(number of
exposures from
construction
activities—132
days)
50
Species
6,600
Take authorization
(number of exposures from pile
driving—4 days)
Pacific harbor seal .........................
250
300
30,968
7,600
No takes by Level A harassment,
serious injury, or mortality are expected
from the disturbance associated with the
construction activities. It is unlikely
adult seals will flush into the water
injuring or abandoning any pups. No
pupping is expected within the
footprint of the construction area as
most pups are found along the main
channel of Elkhorn Slough. Pacific
harbor seals have been hauling out in
the project area and within the greater
Elkhorn Slough throughout the year for
many years (including during pupping
season and while females are pregnant)
while being exposed to anthropogenic
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19.37
Population trend
Increased in California 1981 to
2004.
Abundance
1,000
Total ........................................
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Abundance
(California
stock)
Approximate
percentage of
estimated
stock
(takes
authorized/
population)
(%)
Population trend
30,968
3.2
Increased in California 1981 to
2004.
24.54
sound sources such as recreational
vessel traffic, UPRR, and other stimuli
from human presence. The number of
harbor seals disturbed will likely also
fluctuate depending on time day and
tidal stage. Fewer harbor seals will be
present in the early morning and
approaching evening hours as seals
leave the haul out site to feed and they
are also not present when the tide is
high and the haul out is inundated.
The following assumptions are made
when estimating potential incidences of
take:
present within the relevant area, and
thus incidentally taken;
• An individual can only be taken
once during a 24-h period;
• There were will be 136 total days of
activity for project (four days of pile
driving and 132 construction activities);
and
• Exposures to sound levels at or
above the relevant thresholds equate to
take, as defined by the MMPA.
• All marine mammal individuals
potentially available are assumed to be
NMFS has defined ‘‘negligible
impact’’ in 50 CFR 216.103 as ‘‘. . . an
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Analyses and Determinations
Negligible Impact Analysis
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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.’’ A negligible
impact finding is based on the lack of
likely adverse effects on annual rates of
recruitment or survival (i.e., populationlevel effects). An estimate of the number
of Level B harassment takes alone is not
enough information on which to base an
impact determination. In addition to
considering estimates of the number of
marine mammals that might be ‘‘taken’’
through behavioral harassment, we
consider other factors, such as the likely
nature of any responses (e.g., intensity,
duration), the context of any responses
(e.g., critical reproductive time or
location, migration), as well as the
number and nature of estimated Level A
harassment takes, the number of
estimated mortalities, and effects on
habitat.
Construction activities associated
with this project have the potential to
disturb or displace marine mammals.
No serious injury or mortality is
expected at all, and with mitigation we
expect to avoid any potential for Level
A harassment as a result of the MinhotoHester Marsh construction activities,
and none are authorized by NMFS. The
specified activities may result in take, in
the form of Level B harassment
(behavioral disturbance) only, from
visual disturbance and/or noise from
construction activities. The project area
is within a portion of the local habitat
for harbor seals of the greater Elkhorn
Slough and seals are present year-round.
Behavioral disturbances that could
result from anthropogenic sound or
visual disturbance associated with these
activities are expected to affect only a
small amount of the total population
(i.e., likely maximum of 250 seals),
although those effects could be
recurring over the life of the project if
the same individuals remain in the
project vicinity. Harbor seals may avoid
the area or halt any behaviors (e.g.,
resting) when exposed to anthropogenic
noise or visual disturbance. Due to the
abundance of suitable haul out habitat
available in the greater Elkhorn Slough,
the short-term displacement of resting
harbor seals is not expected to affect the
overall fitness of any individual animal.
Effects on individuals that are taken
by Level B harassment, on the basis of
reports in the literature as well as
monitoring from other similar activities,
will likely be limited to reactions such
as displacement from the area or
disturbance during resting. The
construction activities analyzed here are
similar to, or less impactful than for
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Parson’s Slough (and other projects)
which have taken place with no
reported injuries or mortality to marine
mammals, and no known long-term
adverse consequences from behavioral
harassment. Repeated exposures of
individuals to levels of noise or visual
disturbance that may cause Level B
harassment are unlikely to result in
hearing impairment or to significantly
disrupt foraging behavior. Many animals
perform vital functions, such as feeding,
resting, traveling, and socializing, on a
diel cycle (i.e., 24 hour cycle).
Behavioral reactions (such as disruption
of critical life functions, displacement,
or avoidance of important habitat) are
more likely to be significant if they last
more than one diel cycle or recur on
subsequent days (Southall et al., 2007).
However, Pacific harbor seals have been
hauling out at Elkhorn Slough during
the year for many years (including
during pupping season and while
females are pregnant) while being
exposed to anthropogenic sound and
visual sources such as vessel traffic,
UPRR trains, and human voices from
kayaking. Harbor seals have repeatedly
hauled out to rest (inside and outside
the project area) or pup (outside of the
project area) despite these potential
stimuli. The activities are not expected
to result in the alteration of
reproductive or feeding behaviors. No
births have been documented in the
project area and it is not likely that
neonates will be in the project area as
females prefer to keep their pups along
the main channel of Elkhorn Slough,
which is outside the area expected to be
impacted by project activities. Seals are
primarily foraging outside of Elkhorn
Slough and at night in Monterey Bay,
outside the project area, and during
times when construction activities are
not occurring.
Pacific harbor seals, as the potentially
affected marine mammal species under
NMFS jurisdiction in the action area,
are not listed as threatened or
endangered under the ESA and NMFS
SARs for this stock have shown that the
population is increasing and is
considered stable (Carretta et al., 2016).
Even repeated Level B harassment of
some small subset of the overall stock is
unlikely to result in any significant
realized decrease in viability for the
affected individuals, and thus will not
result in any adverse impact to the stock
as a whole. The restoration of the marsh
habitat will have no adverse effect on
marine mammal habitat, but possibly a
long-term beneficial effect on harbor
seals by improving ecological function
of the slough, inclusive of higher
species diversity, increased species
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abundance, larger fish, and improved
habitat.
In summary, this negligible impact
analysis is founded on the following
factors: (1) The possibility of injury,
serious injury, or mortality may
reasonably be considered discountable;
(2) the anticipated incidents of Level B
harassment consist of, at worst,
temporary modifications in behavior; (3)
primary foraging and reproductive
habitat are outside of the project area
and the construction activities are not
expected to result in the alteration of
habitat important to these behaviors or
substantially impact the behaviors
themselves; (4) there is alternative haul
out habitat just outside the footprint of
the construction area, along the main
channel of Elkhorn Slough, and in
Parson’s Slough that will be available
for seals while some of the haul outs are
inaccessible; (5) restoration of the marsh
habitat will have no adverse effect on
marine mammal habitat, but possibly a
long-term beneficial effect; (6) and the
presumed efficacy of the mitigation
measures in reducing the effects of the
specified activity to the level of least
practicable impact. In addition, these
stocks are not listed under the ESA or
considered depleted under the MMPA.
In combination, we believe that these
factors, as well as the available body of
evidence from other similar activities,
demonstrate that the potential effects of
the specified activities will have only
short-term effects on individuals. The
specified activities are not expected to
impact rates of recruitment or survival
and will therefore not result in
population-level impacts.
Based on the analysis contained
herein of the likely effects of the
specified activity on marine mammals
and their habitat, and taking into
consideration the implementation of the
monitoring and mitigation measures, we
preliminarily find that the total marine
mammal take from the construction
activities will have a negligible impact
on the affected marine mammal species
or stocks.
Small Numbers Analyses
The number of incidents of take
authorized for harbor seals is considered
small relative to the relevant stock and
populations (see Table 4) even if each
estimated taking occurred to a new
individual. This is an extremely
unlikely scenario as, for pinnipeds in
estuarine/inland waters, there is likely
to be some overlap in individuals
present day-to-day. As noted above, we
assume that a maximum of 250 seals
will be impacted during the course of
this specified activity. While we cannot
say that the same 250 individual seals
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would be affected, we believe that there
is a minimal exchange of individuals
over time and that the number of
individuals would not be appreciably
larger than this. We preliminarily find
that small numbers of marine mammals
will be taken relative to the populations
of the affected species or stocks.
Impact on Availability of Affected
Species for Taking for Subsistence Uses
There are no relevant subsistence uses
of marine mammals implicated by these
actions. Therefore, we have determined
that the total taking of harbor seals will
not have an unmitigable adverse impact
on the availability of such species or
stocks for taking for subsistence
purposes.
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Endangered Species Act (ESA)
No ESA-listed marine mammal
species under NMFS’ jurisdiction are
expected to be affected by these
activities. Therefore, NMFS has
determined that a section 7 consultation
under the ESA is not required.
National Environmental Policy Act
NMFS prepared an SEA and analyzed
the potential impacts to marine
mammals that will result from the
project. After reviewing the project,
NMFS determined the Minhoto-Hester
Marsh restoration fell within the scope
and effects of activities analyzed in the
NOAA Restoration Center, Southwest
Region Community-Based Restoration
Program’s (CRP) August 2010 Targeted
SEA (TSEA) for the Parson’s Slough
Project (the adjoining salt marsh to the
Minhoto-Hester Marsh and also within
Elkhorn Slough), as well as the February
6, 2002 Programmatic EA (PEA) for the
CRP Implementation Plan and the June
23, 2006 Supplemental PEA the CRP
Implementation Plan (SPEA). The
impacts to ESA listed species and
marine mammals under the MMPA
were analyzed in the TSEA, PEA, and
SPEA; however, updated as is relevant
for this SEA. The SEA level of review
was conducted in accordance with the
implementation procedures described in
the SPEA (specifically for Sediment
Removal and Materials Placement in the
tidal wetlands environment) and
appropriately focused on consideration
of effects to species listed under the
ESA and protected under the MMPA
(e.g., noise, displacement, habitat
quality/quantity). Beyond consideration
of site-specific effects to these species,
our review of the action did not reveal
any substantial changes in the action or
new potentially significant adverse
effects to other elements of the human
environment which would require
additional review in the SEA. NMFS
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18:51 Apr 05, 2017
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considered comments submitted in
response to our Federal Register notice
of the proposed IHA and the CADFW
application as part of the process. The
FONSI was signed on November 15,
2016.
Authorization
As a result of these determinations,
NMFS has issued an IHA to CADFW for
the harassment of small numbers of
harbor seals incidental to the MinhotoHester Marsh restoration project in
Elkhorn Slough, Monterey, California,
effective for one year beginning August
1, 2017, provided the previously
mentioned mitigation, monitoring and
reporting requirements are incorporated.
Dated: March 31, 2017.
Donna S. Wieting,
Director, Office of Protected Resources,
National Marine Fisheries Services.
[FR Doc. 2017–06791 Filed 4–5–17; 8:45 am]
BILLING CODE 3510–22–P
COMMODITY FUTURES TRADING
COMMISSION
Sunshine Act Meetings
FEDERAL REGISTER CITATION OF PREVIOUS
ANNOUNCEMENT: 82 FR 15699, March 30,
2017.
PREVIOUSLY ANNOUNCED TIME AND DATE OF
THE MEETING: 11:00 a.m., Thursday,
April 6, 2017.
CHANGES IN THE MEETING:
The meeting
has been cancelled.
CONTACT PERSON FOR MORE INFORMATION:
Christopher Kirkpatrick, 202–418–5964.
Christopher J. Kirkpatrick,
Secretary of the Commission.
[FR Doc. 2017–07023 Filed 4–4–17; 4:15 pm]
BILLING CODE 6351–01–P
BUREAU OF CONSUMER FINANCIAL
PROTECTION
Supervisory Highlights: Consumer
Reporting Special Edition
Bureau of Consumer Financial
Protection.
ACTION: Supervisory Highlights; notice.
AGENCY:
The Bureau of Consumer
Financial Protection (CFPB) is issuing
its fourteenth edition of its Supervisory
Highlights. In this issue of Supervisory
Highlights, we report examination
findings in the area of consumer
reporting. These observations include
findings from examinations at consumer
reporting companies and at companies
that furnish information to consumer
reporting companies.
SUMMARY:
PO 00000
Frm 00030
Fmt 4703
Sfmt 4703
The Bureau released this edition
of the Supervisory Highlights on its Web
site on March 2, 2017.
FOR FURTHER INFORMATION CONTACT:
Alice Hrdy, Deputy Assistant Director,
Office of Supervision Policy, 1700 G
Street NW., 20552, (202) 435–7129.
SUPPLEMENTARY INFORMATION:
DATES:
1. Introduction
Credit reporting plays a critical role in
consumers’ financial lives, a role that
most consumers do not recognize
because it is usually not very visible to
them. Credit reports on a consumer’s
financial behavior can determine a
consumer’s eligibility for credit cards,
car loans, and home mortgage loans—
and they often affect how much a
consumer is going to pay for that loan.
Federal law provides an important
framework to ensure the players in the
consumer reporting system receive the
benefits of our risk-based credit
economy.
The Consumer Financial Protection
Bureau (CFPB) is the first Federal
agency to have supervisory authority
over many of the key institutions in the
consumer reporting system. First are the
creditors and others that supply the
information about consumers’ financial
behavior, referred to as furnishers,
including banks, mortgage servicers,
student loan servicers, and debt
collectors. Second are the consumer
reporting companies (CRCs), including
the largest consumer reporting
companies, consumer report resellers,
and specialty consumer reporting
companies. CRCs sell the information in
the form of consumer reports to
creditors and other users and provide
them to consumers. Third are those that
use the information for credit decisions
as well as employment, insurance, and
other decisions. The CFPB’s jurisdiction
over the major players in each of these
categories is unique and has allowed the
Bureau to take an integrated approach to
improving the accuracy of information
across the system.
We prioritized this market for
oversight to promote our vision of a
consumer reporting system: A system
where furnishers provide and CRCs
maintain and distribute data that are
accurate, supplemented by an effective
and efficient dispute management and
resolution process for consumers.
The CFPB’s vision is rooted in the
obligations and rights set forth in the
Fair Credit Reporting Act (FCRA) and
Regulation V.1 In the last two years, we
identified failings in compliance
management systems and violations of
1 15
E:\FR\FM\06APN1.SGM
U.S.C. 1681, et seq. and 12 CFR 1022.
06APN1
]]>Agencies
[Federal Register Volume 82, Number 65 (Thursday, April 6, 2017)]
[Notices]
[Pages 16800-16808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06791]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XE687
Takes of Marine Mammals Incidental To Specified Activities;
Taking Marine Mammals Incidental to a Tidal Marsh Restoration Project
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
the California Department of Fish and Wildlife--Central Region (CADFW)
to incidentally harass, by Level B harassment only, marine mammals
during construction activities associated with the tidal marsh
restoration project within the Minhoto-Hester Marsh in Elkhorn Slough
(Monterey, CA).
DATES: This Authorization is in effect for one year beginning August 1,
2017.
FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Availability
An electronic copy of the CADFW's application and supporting
documents, as well as a list of the references cited in this document,
may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please
call the contact listed above.
National Environmental Policy Act
In accordance with the National Environmental Policy Act (NEPA) (42
U.S.C. 4321 et seq.), NMFS prepared a Supplemental Environmental
Assessment (SEA) titled ``Final Supplemental Environmental Assessment
for the Minhoto-Hester Marsh Restoration Project, Elkhorn Slough,
Monterey County, California.'' A Finding of No Significant Impact
(FONSI) was signed on November 15, 2016. NMFS considered comments
submitted in response to our Federal Register notice of the proposed
IHA (81 FR 67297; September 30, 2016) and CADFW's application as part
of the process. All documents are available at the aforementioned Web
site.
Background
Sections 101(a)(5)(D) of the MMPA (16 U.S.C. 1361 et seq.) direct
the Secretary of Commerce to allow, upon request 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 was provided to the public for
review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, 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.''
Section 101(a)(5)(D) of the MMPA established an expedited process
by which citizens of the U.S. can apply for an authorization to
incidentally take small numbers of marine mammals by harassment.
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 marine
mammals. Within 45 days of the close of the comment period, NMFS must
either issue or deny the authorization. Except with respect to certain
activities not pertinent here, 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).''
Summary of Requests
On June 2, 2016, we received an application from the CADFW for
authorization to take marine mammals incidental to construction
activities associated with a 47-acre tidal marsh restoration project
within the Minhoto-Hester Marsh in Elkhorn Slough (Monterey, CA) (Phase
1). The overall Elkhorn Slough Tidal Marsh Restoration Project will
restore a total of 147 acres, however, future phases are not part of
this application as they are currently unfunded and present some
additional technical challenges. Another IHA request will be made prior
to implementation of any proposed future phases. The CADFW submitted
revised versions of the application on July 13, 2016, August 2, 2016,
August 29, 2016, and a final application on September 6, 2016 which we
deemed adequate and complete.
The activity will begin August 1, 2017 and last approximately 11
months with built in buffers for adverse weather and other conditions
when work is not possible. Pacific harbor seal (Phoca vitulina
richardii) and southern sea otters (Enhydra lutris nereis) are expected
to be present during the work. Southern sea otters are managed by the
U.S. Fish and Wildlife Service and will
[[Page 16801]]
not be considered further in this IHA. Construction activities are
expected to produce noise and visual disturbance that have the
potential to result in behavioral harassment of harbor seals.
Description of the Specified Activities
A detailed description of the project is provided in the Federal
Register notice for the proposed IHA (81 FR 67297; September 30, 2016).
Since that time, no changes have been made to the planned construction
activities. Therefore, a detailed description is not provided here.
Please refer to that Federal Register notice for the description of the
specific activity.
The CADFW proposes to restore approximately 47 acres of tidal marsh
within the Minhoto-Hester Marsh in Elkhorn Slough (Monterey, CA) and
additional tidal marsh, upland ecotone, native grasslands restoration
within a buffer area (Phase 1). The CADFW intends to restore tidal
marsh to reduce tidal erosion, improve water quality, provide sea-level
rise resilience, increase carbon sequestration, and improve ecosystem
function that have been altered by past land use practices. Under the
planned action, 132 days of construction activities and four days of
vibratory pile driving (total 136 days of project activities) related
to the tidal marsh restoration will occur over an 11-month period.
Comments and Responses
A notice of NMFS's proposal to issue an IHA to CADFW was published
in the Federal Register on September 30, 2016 (81 FR 67297). That
notice described, in detail, CADFW's activity, the marine mammal
species that may be affected by the activity, and the anticipated
effects on marine mammals. During the 30-day public comment period,
NMFS received comments from the Marine Mammal Commission. The Marine
Mammal Commission recommended that NMFS issue the IHA, and concurred
with the planned mitigation, monitoring, and reporting measures.
Description of Marine Mammals in the Area of the Specified Activity
The marine mammal species under NMFS jurisdiction occurring in the
project area is the Pacific harbor seal (see Table 1).
Table 1--Harbor Seal Status Information
--------------------------------------------------------------------------------------------------------------------------------------------------------
Relative occurrence
ES)/MMPA status; Stock abundance (CV, Nmin, Annual M/SI in Elkhorn Slough;
Species Stock strategic (Y/N) \1\ most recent abundance PBR \3\ \4\ season of
survey) \2\ occurrence
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal...................... California......... -; N............... 30,968 (n/a; 27,348; 2012) 1,641 42.8 Common; year-round
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks of
pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge
of the species (or similar species) life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the
minimum abundance may represent actual counts of all animals ashore. The most recent abundance survey that is reflected in the abundance estimate is
presented; there may be more recent surveys that have not yet been incorporated into the estimate.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All
values presented here are from the final 2015 Pacific SAR. (https://www.nmfs.noaa.gov/pr/sars/region.htm).
A detailed description of the harbor seal likely to be affected by
the restoration project, including a brief introduction to the species
and relevant stock as well as available information regarding
population trends and threats, and information regarding local
occurrence, were provided in the Federal Register notice for the
proposed IHA (81 FR 67297; September 30, 2016); since that time, we are
not aware of any changes in the status of this species and stock;
therefore, detailed descriptions are not provided here. Please refer to
that Federal Register notice for these descriptions. Please also refer
to NMFS' Web site (https://www.fisheries.noaa.gov/pr/species/mammals/seals/harbor-seal.html) for the generalized harbor seal account and see
NMFS' Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars, for more detailed accounts of the harbor seal stocks' status
and abundance. The harbor seal is assessed in the Pacific SAR (Carretta
et al., 2016).
Potential Effects of the Specified Activity on Marine Mammals
The effects of noise and visual disturbance from construction
activities for the project have the potential to result in behavioral
harassment of marine mammals in the vicinity of the action area. The
Federal Register notice for the proposed IHA (81 FR 67297; September
30, 2016) included a discussion of the effects of anthropogenic noise
on marine mammals; therefore, that information is not repeated here.
In summary, harbor seals that use the four haul out sites, just
beyond the footprint of the construction, area and in other nearby
areas may potentially experience behavioral disruption rising to the
level of harassment (Level B) from construction activities, which may
include visual disturbance due to the presence and activity of heavy
equipment and construction workers, airborne noise from the equipment,
and from underwater noise during the brief period of sheet pile
installation. Disturbed seals are likely to experience any or all of
these stimuli, and take may occur due to any of these in isolation or
in combination with the others.
Anticipated Potential Effects on Marine Mammal Habitat
The main impact to marine mammal habitat associated with the
CADFW's restoration project is the temporary exclusion from the
accustomed haul out areas. During the restoration, the inability of
seals to use suitable habitat within the footprint of the construction
area will temporarily remove less than two percent of the potential
haul out areas in the Slough (see Figure 4-4 of the application).
Although the action will permanently alter habitat within the footprint
of the construction area, harbor seals haul out in many locations
throughout the estuary, and the activities are not expected to have any
habitat-related effects that could cause
[[Page 16802]]
significant or long-term consequences for individual harbor seals or
their population. Potential effects to marine mammal habitat are
discussed in detail in the Federal Register notice for the proposed IHA
(81 FR 67297; September 30, 2016), therefore that information is not
repeated here; please refer to that Federal Register notice for that
information.
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to such
activity, and other means of effecting the least practicable impact on
such species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of such species or stock for taking for certain
subsistence uses (where relevant). CADFW shall implement the following
mitigation measures:
Timing Restrictions
Construction work shall occur only during daylight hours when
visual monitoring of marine mammals can be implemented. No in-water
work will be conducted at night.
Construction Activities
After sheet piles are installed, it will be unlikely that harbor
seals will be able to access the construction area and will temporarily
be displaced from using the four haul outs within the footprint of the
construction area. Should seals attempt to enter the construction area,
they will need to traverse a minimum 7ft high berm into an area without
water. If a seal enters the construction area after installation of
barriers, CADFW shall use a government official to flush any such seals
from the area for purposes of protection/welfare of the animals (as
allowed through section 109(h) of the MMPA). The NMFS' West Coast
Regional Office and The Marine Mammal Center (Rescue and Response) will
be available should this occur. In addition, to reduce the risk of
potentially startling marine mammals with a sudden intensive sound, the
contractor shall begin construction activities gradually each day by
moving around the project area and starting heavy equipment one at a
time.
Pupping Season
While CADFW does not anticipate any pupping within the project
area, should a pup less than one week old (neonate) come within 20 m of
where heavy machinery is working, construction activities in that area
will be delayed until the pup has left the area. In the event that a
pup less than one week old remains within those 20 m, NMFS will be
consulted to determine the appropriate course of action.
Vibratory Pile Driving
An exclusion zone of 15 m shall be established during the 4 days of
pile driving to prevent the unlikely potential for physical injury of
harbor seals due to close approach to construction equipment. Pile
extraction or driving shall not commence (or re-commence following a
shutdown) until marine mammals are not sighted within the exclusion
zone for a 15-minute period. If a marine mammal enters the exclusion
zone during sheet pile work, work shall stop until the animal leaves
the exclusion zone or is not observed for a minimum of 15 minutes.
Based on our evaluation of the mitigation measures, as well as any
other potential measures that may be relevant to the specified
activity, we have determined that the mitigation measures provide the
means of effecting the least practicable impact on marine mammal
species or stocks and their habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth ``requirements pertaining to
the monitoring and reporting of such taking''. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
incidental take authorizations must include the suggested means of
accomplishing the necessary monitoring and reporting that will result
in increased knowledge of the species and of the level of taking or
impacts on populations of marine mammals that are expected to be
present in the action area.
Any monitoring requirement we prescribe should improve our
understanding of one or more of the following:
Occurrence of marine mammal species in the action area
(e.g., presence, abundance, distribution, density).
Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
Affected species (e.g., life history, dive patterns); (3) Co-occurrence
of marine mammal species with the action; or (4) Biological or
behavioral context of exposure (e.g., age, calving or feeding areas).
Individual responses to acute stressors, or impacts of
chronic exposures (behavioral or physiological).
How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of an individual; or (2) Population,
species, or stock.
Effects on marine mammal habitat and resultant impacts to
marine mammals.
Mitigation and monitoring effectiveness.
Monitoring--Visual Marine Mammal Observations
Qualified Protected Species Observers (PSO) (a NMFS approved
biologist) shall be used to detect, document, and minimize impacts to
marine mammals. Monitoring shall be conducted before, during, and after
construction activities. In addition, PSOs shall record all incidents
of marine mammal occurrence, regardless of distance from activity, and
document any behavioral reactions in concert with distance from
construction activities.
Important qualifications for PSOs for visual monitoring include:
Visual acuity in both eyes (correction is permissible)
sufficient for discernment of harbor seals on land or in the water with
ability to estimate target size and distance; use of binoculars may be
necessary to correctly identify the target;
Advanced education in biological science or related field
(undergraduate degree or higher required);
Experience and ability to conduct field observations and
collect data according to assigned protocols (this may include academic
experience);
Experience or training in the field identification of
marine mammals, including the identification of behaviors;
Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations;
Writing skills sufficient to prepare a report of
observations including but not limited to the number and species of
marine mammals observed; dates and times when construction activities
were conducted; dates and times when construction activities were
suspended, if necessary; and marine mammal behavior; and
Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
[[Page 16803]]
PSOs shall be placed at the best vantage point(s) (e.g., Yampah
Island, see Figure 2 of the monitoring plan in the application)
practicable to monitor for marine mammals. PSOs shall also conduct
mandatory biological resources awareness training for construction
personnel. The awareness training shall be provided to brief
construction personnel on marine mammals (inclusive of identification
as needed, e.g., neonates) and the need to avoid and minimize impacts
to marine mammals. If new construction personnel are added to the
project, the contractor shall ensure that the personnel receive the
mandatory training before starting work. The PSO shall have the
authority to stop construction if marine mammals appear distressed
(evasive maneuvers, rapid breathing, inability to flush) or in danger
of injury.
CADFW developed a monitoring plan based on discussions between the
CADFW and NMFS. CADFW shall collect sighting data and behavioral
responses to construction activities for marine mammal species observed
in the region of activity during the period of activity. All PSOs shall
be trained in marine mammal identification and behaviors and are
required to have no other construction-related tasks while conducting
monitoring.
The monitoring plan involves PSOs surveying and conducting visual
counts beginning prior to construction activities (beginning at least
30 minutes prior to construction activities), hourly monitoring during
construction activities, and post-activity monitoring (continuing for
at least 30 minutes after construction activities have ended). PSOs
shall conduct monitoring from a vantage point in the marsh (e.g.,
Yampah Island) such that all seal haul outs (see Figure 2 of the
monitoring plan in the application) are in full view. During
construction activities, monitoring shall assess behavior and potential
behavioral responses to noise and visual disturbance due to the
activities. To document disturbance and possible incidental take during
construction activities, the monitoring protocols shall be implemented
at all times when work is occurring either (1) in-water, (2) north of a
line starting at 36[deg]48'38.91 N. 121[deg]45'08.03 W. and ending
36[deg]48'38.91 N. 121 [deg]45'27.11 W. (see Figure 1 of the monitoring
plan in the application), or (3) within 30.5 m (100 ft) of tidal
waters. When work is occurring in other areas, monitoring shall occur
for the first three days of construction and anytime there is a
significant change in activities or location of construction activities
within the project area. If disturbance is noted at any time, then
monitoring shall continue until there are three successive days of no
disturbance. If there is a gap in construction activities of more than
one week, the monitoring protocols shall again be implemented for the
first three days that construction resumes.
Counts shall be performed for harbor seals hauled out and observed
in the water. Total counts, sex, and age (adult, juvenile, pup) shall
be recorded. Behavioral monitoring shall be conducted for the duration
of the construction activities to document any behavioral responses to
visual (or other) disturbance, according to the disturbance scale shown
in Table 2 below. When responses are observed, the degree of response
(i.e., alert and flush, movement of more than one m, or change in
direction of movement) and the assumed cause (whether related to
construction activities or not) will be noted. Only responses at Level
2 and 3 are considered to be take under the MMPA.
Table 2--Seal Response to Disturbance
------------------------------------------------------------------------
Level Type of response Definition
------------------------------------------------------------------------
1...................... Alert............. Seal head orientation or
brief movement in response
to disturbance, which may
include turning head
towards the disturbance,
craning head and neck
while holding the body
rigid in a u-shaped
position, changing from a
lying to a sitting
position, or brief
movement of less than
twice the animal's body
length. Alerts will be
recorded, but not counted
as a `take'.
2...................... Movement.......... Movements away from the
source of disturbance,
ranging from short
withdrawals at least twice
the animal's body length
to longer retreats, or if
already moving a change of
direction of greater than
90 degrees. These
movements will be recorded
and counted as a `take'.
3...................... Flush............. All retreats (flushes) to
the water. Flushing into
the water will be recorded
and counted as a `take'.
------------------------------------------------------------------------
Additional parameters shall be recorded including: Atmospheric
conditions, cloud cover, visibility conditions, air and water
temperature, tide height, and any other disturbance (visual or noise)
that may be noted. We require that PSOs use approved data forms. Among
other pieces of information, CADFW shall record detailed information
about any implementation of shutdowns, including the distance of
animals to construction activities and description of specific actions
that ensued and resulting behavior of the animal, if any. In addition,
CADFW shall attempt to distinguish between the number of individual
animals taken and the number of incidents of take. Additional
requirements of PSOs include:
(1) The PSO shall be selected prior to construction activities;
(2) The PSO shall attend the project site prior to, during, and
after construction activities cease each day that the construction
activities occur (as outlined in the monitoring plan);
(3) The PSO shall search for marine mammals on the seal haul outs,
other suitable haul out habitat, and within the waters of this area
from the observation site. PSOs shall use binoculars and the naked eye
to search continuously for marine mammals;
(4) The PSO shall be present during construction activities to
observe for the presence of marine mammals in the vicinity of the
specified activity (as outlined in the monitoring plan). All such
activity will occur during daylight hours. If inclement weather limits
visibility within the area of effect, the PSO will perform visual scans
to the extent conditions allow. For pile driving activities, if the 15
m area around the pile driving is obscured by fog or poor lighting
conditions, pile driving shall not be initiated until that area is
visible;
(5) If marine mammals are sighted by the PSO, the PSO shall record
the number of marine mammals and the duration of their presence while
the construction activity is occurring. The PSO shall also note whether
the marine mammals appeared to respond to the noise/visual disturbance
and, if so, the nature of that response. The PSO shall record the
following information; date and time of initial sighting, tidal stage,
weather conditions, species, behavior (e.g., foraging, mating, etc.),
group cohesiveness, direction and speed of
[[Page 16804]]
travel, etc., number, tagged animals, whether the animal(s) are in the
water or hauled out, group composition, distance between construction
activities and marine mammal(s), number of animals impacted, location,
construction activities occurring at time of sighting (earth moving
equipment, construction personnel walking/talking, pile driving etc.),
and monitoring and mitigation measures implemented or not implemented).
The observations shall be reported to NMFS; and
(6) A final report shall be submitted summarizing all effects from
construction activities and marine mammal monitoring during the time of
the authorization.
A written log of dates and times of monitoring activity shall be
kept. The log shall report the following information:
Time of PSO arrival on site;
Time of the commencement of construction activities;
Distances to all marine mammals relative to the
disturbance;
Observations, notes on marine mammal behavior during
construction activities, as described above, and on the number and
distribution observed in the project vicinity;
For observations of all other marine mammals (if observed)
the time and duration of each animal's presence in the project
vicinity; the number of animals observed; the behavior of each animal,
including any response to construction activities;
Time of the cessation of construction activities; and
Time of PSO departure from site.
Individuals implementing the monitoring protocol shall assess its
effectiveness using an adaptive approach. PSOs shall use their best
professional judgment throughout implementation and seek improvements
to these methods when deemed appropriate. Any modifications to protocol
shall be coordinated between NMFS and the CADFW.
Reporting
A draft report shall be submitted to NMFS within 90 days of the
completion of marine mammal monitoring, or sixty days prior to the
issuance of any subsequent IHA for this project (if required),
whichever comes first. The report shall include marine mammal
observations pre-activity, during-activity, and post-activity of
construction, and will also provide descriptions of any behavioral
responses by marine mammals due to disturbance from construction
activities and a complete description of total take estimate based on
the number of marine mammals observed during the course of
construction. A final report shall be submitted within thirty days
following resolution of comments on the draft report.
Estimated Take by Incidental Harassment
Except with respect to certain activities not pertinent here,
section 3(18) of 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).''
All anticipated takes will be by Level B harassment resulting from
construction activities involving temporary changes in behavior. It is
unlikely that injurious or lethal takes will occur even in the absence
of the planned mitigation and monitoring measures. Further, the
mitigation and monitoring measures are expected to minimize the
possibility of take by Level A harassment, such that it is considered
discountable.
Given the many uncertainties in predicting the quantity and types
of impacts of sound or visual disturbance on marine mammals, it is
common practice to estimate how many animals are likely to be present
within a particular distance of a given activity, or exposed to a
particular level of sound or visual disturbance. In practice, depending
on the amount of information available to characterize daily and
seasonal movement and distribution of affected marine mammals, it can
be difficult to distinguish between the number of individuals harassed
and the instances of harassment and, when duration of the activity is
considered, it can result in a take estimate that overestimates the
number of individuals harassed. In particular, for stationary
activities, it is more likely that some smaller number of individuals
may accrue a number of incidences of harassment per individual than for
each incidence to accrue to a new individual, especially if those
individuals display some degree of residency or site fidelity and the
impetus to use the site (e.g., because of foraging opportunities) is
stronger than the deterrence presented by the harassing activity.
In order to estimate the potential incidents of take that may occur
incidental to the specified activity, we must first estimate the area
subject to the disturbance that may be produced by the construction
activities and then consider in combination information about harbor
seals present and the number of days animals will be disturbed during
the project. We then provide information to estimate potential
incidents of take from disturbance as related to construction
activities.
Introduction to Acoustic Criteria
We use generic sound exposure thresholds to determine when an
activity that produces sound might result in impacts to a marine mammal
such that a take by harassment might occur. To date, no studies have
been conducted that explicitly examine impacts to marine mammals from
pile driving sounds or from which empirical sound thresholds have been
established. The generic thresholds described below (Table 3) are used
to estimate when harassment may occur (i.e., when an animal is exposed
to levels equal to or exceeding the relevant criterion) in specific
contexts. However, useful contextual information that may inform our
assessment of effects is typically lacking and we consider these
thresholds as step functions.
Table 3--Current Acoustic Exposure Criteria for Pinnipeds
------------------------------------------------------------------------
Criterion Definition Threshold
------------------------------------------------------------------------
Level B harassment Behavioral 120 dB (non-impulse,
(underwater). disruption. continuous source,
i.e., vibratory pile
driving) (rms)
Level B harassment (airborne) Behavioral 90 dB (harbor seals)
disruption.
------------------------------------------------------------------------
[[Page 16805]]
Sound Produced From Construction Activities
Any underwater noise produced during pile driving in Minhoto-Hester
Marsh will attenuate according to the shoreline topography. In a narrow
and relatively shallow slough, bends and topographic changes in the
bottom will act to reflect sound and attenuate sound levels. Seals
within the project area, from the sound source (vibratory pile driving)
to the north bank of the main channel of Elkhorn Slough (approximately
525-600 m; see Figure 6-4 in the application), may be impacted by noise
and were used as the area to define Level B take estimates. Seals may
be exposed to underwater noise that could cause behavioral harassment
(i.e., above NMFS' 120-dB (rms re 1 [mu]Pa) behavioral harassment
criterion) only within a small area (see Figure 6-4 of the
application). This small section of channel defines the extent of the
potential Level B harassment zone for underwater noise.
Restoration activities will produce airborne noise that could
potentially harass harbor seals that are hauled out near the
activities. For example, airborne noise produced from earth moving
equipment (i.e., backhoes, front end loaders) for construction, may
produce sound levels at 80-90 dB at 15.24 m (Federal Highway
Administration, 2015). However, disturbance resulting from use of heavy
equipment or other aspects of the work could occur due to visual
stimuli or airborne noise, and the likely range within which seals may
be disturbed will be larger than the range to the 90-dB airborne noise
disturbance criterion. Therefore, we do not evaluate takes specifically
due to exposure to airborne noise and do not discuss airborne noise
further in this document.
Description of Take Calculation
The following sections are descriptions of how take was determined
for impacts to harbor seals from noise and visual disturbance related
to construction activities.
Incidental take is calculated for each species by estimating the
likelihood of a marine mammal being present within the project area
during construction activities. Expected marine mammal presence is
determined by past observations and general abundance during the
construction window. For this project, the take requests were estimated
using local marine mammal data sets, and information from state and
federal agencies.
The calculation for marine mammal exposures is estimated by:
Exposure estimate = N (number of animals in the area) * 132 days of
construction activities or 4 days of pile driving activity
All estimates by the applicant and accepted by NMFS, are considered
conservative. Construction activities will occur in sections, and some
sections (e.g., M1) are further away from seal haul outs (approximately
420 m and greater). Noise from construction activities in more southern
sections of the footprint of the construction area may cause fewer
disturbances to seals. Not all seals that previously used the haul outs
within the footprint of the construction area will use the haul outs
just outside the project. The channel is small and the available
habitat will likely not be able to support all 100 seals of the
Minhoto-Hester Marsh Complex. Some seals may seek alternative haul out
habitat in other parts of Elkhorn Slough. Pile driving will only occur
for a short duration (four days) and will not be continuous during the
day (daylight hours only). Using this approach, a summary of estimated
takes of harbor seals incidental the project activities are provided in
Table 4. Estimates include Level B harassment as a result of exposure
to noise and visual disturbance during construction activities.
The best scientific information available was considered for use in
the harbor seal take assessment calculations. It is difficult to
estimate the number of harbor seals that could be affected by
construction activities because the animals are mainly either in the
project area or venture near the project area to haul out during the
day when the tide is low. Once the tidal channel is blocked and four
haul out sites (Small Island, M2 North, M3 North and M3 East) are
inaccessible, some seals will be able to use the alternative four hauls
outs (M5 Northeast, M5 Southeast, Yampah Northwest and Yampah
Southwest). Seals that use these alternative four haul outs may be
potentially impacted from noise and visual disturbance from
construction activities of the tidal marsh restoration, but seals that
normally use areas in the interior tidal channel may use haul outs that
are outside the expected area of influence of the construction
activity.
Various types of construction equipment (in addition to pile
drivers) will be utilized for project activities such as dozers,
loaders, and backhoes that may generate sound that can cause both noise
and visual disturbance to harbor seals. Although the exact distance of
all noise disturbances from construction activities is unknown, it is
anticipated that the disturbance area for airborne noise will be small
as earth moving equipment (i.e., backhoes, front end loaders) produce
sound levels at 80-90 dB at 15.24 m and vibratory driving of sheet
piles at 90 dBA at 30 m (dBA can be defined as dB with A-weighting
designed to match the average frequency response of human hearing and
enables comparison of the intensity of noise with different frequency
characteristics). The closest haul outs that will be available to seals
are 43-131 m outside the footprint of the construction area. If seals
are in the water near the project or on available haul outs there is a
chance that seals could be exposed to noise and/or visual disturbance
from the construction activities. Construction activities may impact
seals using haul outs M5 Northeast, M5 Southeast, Yampah Northwest and
Yampah Southwest.
We assume that an average of 50 harbor seals will potentially
occupy the alternate haul outs based on the size of the haul out
habitat that is available. Four haul outs (out of eight) will be
temporarily inaccessible during the construction; therefore, half of
the seals (approximately 50 out of the 100 seals) of the Minhoto-Hester
Marsh Complex will likely use the alternate four haul outs and
experience disturbance from construction activities. It is presumed
that the other half of the seals (50 seals) of the Minhoto-Hester March
Complex will utilize other suitable haul out habitat within Elkhorn
Slough and are not considered available to be ``taken'' during
construction activities (Monique Fountain, Elkhorn Slough National
Estuarine Research Reserve, pers. comm. 2016). We multiply this
estimate of the number of harbor seals potentially available to be
taken by the total number of days (132 days) the applicant expects
construction activities to occur. Therefore, NMFS authorizes 132
instances of takes for 50 harbor seals (total of 6,600 instances) by
Level B harassment incidental to construction activities (airborne
noise and visual disturbance) over the course of the action if all of
the estimated harbor seals present are taken by incidental harassment
each day (Table 4). Note: NMFS does not assume that the 50 seals will
be the same individuals taken during each of the 132 days of
construction; rather some seals in the area may be taken more times
than others if they stay in the area and do not utilize other parts of
the Slough.
While the pile driving activities are planned to take place during
slack tide to the extent possible (when harbor seals are less likely to
be present), and only for a short duration, there may still
[[Page 16806]]
be animals exposed to disturbance from pile driving even if the number
of individual harbor seals expected to be encountered is very low.
There are approximately 100 harbor seals that utilize Minhoto-Hester
Marsh Complex that may be disturbed during pile driving activities.
Additionally, there is some potential that an additional 100 harbor
seals that occur in the adjacent Parson's Slough Complex and Yampah
Marsh and 50 harbor seals that may be present in the main channel of
Elkhorn Slough could also be disturbed. NMFS authorizes four instances
of take for 250 harbor seals (total of 1,000 instances) by Level B
harassment incidental to pile driving activities over the course of the
action if all of the estimated harbor seals present are taken by
incidental harassment each day. This is an estimate based on the
average number of harbor seals that potentially occupy the project area
(and surrounding areas) (250 seals) multiplied by the total number of
days (four days) the applicant expects pile driving activities to occur
(Table 4). Note: NMFS does not assume that the 250 seals will be the
same individuals taken during each of the four days of construction;
rather some seals in the area may be taken more times than others if
they stay in the area and do not utilize other parts of the Slough.
This is a very conservative estimate, as not all the seals are likely
in or near the project area at the same time, some of which are due to
environmental variables such as tide level and the time of day. In the
Minhoto-Hester Marsh Complex, a maximum daily average of 40 seals were
present in the project area (on Small Island, M2 North, M3 North, and
M3 East haul out sites) and 41 seals outside the project area (on M5
Northeast, M5 Southeast, Yampah Northwest and Yampah Southwest haul out
sites) during the 2013 surveys, which is slightly less than the 100
seals that may be taken. In addition, noise attenuates quickly due to
shallow water, tidal influence and sinewy channels of Elkhorn Slough.
NMFS considers this to be an conservative estimate by the applicant for
the following reasons: (1) It will be unlikely that all 250 seals will
be in the vicinity of the project area daily as there are other areas
of the Slough that they likely use to haul out (see Figure 4-4 of the
application); (2) as mentioned above, the haul out sites within the
footprint of the construction area will be inaccessible to harbor seals
and NMFS do not expect harbor seals to be affected by pile driving
activities during the days/times when pile driving and high tide events
co-occur; (3) harbor seals begin to leave the project area at night
when they are likely foraging in Monterey Bay and will not be exposed
to sound generated during pile driving that may take place during early
evening hours; and, (4) based on previous survey effort conducted for
the adjacent Parson's Slough project, some harbor seals moved out of
the disturbance area when construction activities were initiated and
moved west (downstream) towards Seal Bend or other areas of suitable
habitat along the main channel of Elkhorn Slough (see Figure 4-4 of the
application).
Table 4--Summary of the Authorized Incidental Take by Level B Harassment of Harbor Seals From Pile Driving and
Construction Activities
----------------------------------------------------------------------------------------------------------------
Take Approximate
Estimated authorization percentage of
number of (number of Abundance estimated
Species seals taken exposures from (California stock (takes Population
per day of construction stock) authorized/ trend
activity activities--132 population)
(seals) days) (%)
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal......... 50 6,600 30,968 19.37 Increased in
California
1981 to 2004.
----------------------------------------------------------------------------------------------------------------
Species .............. Take Abundance .............. Population
authorization trend
(number of
exposures from
pile driving--4
days)
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal......... 250 1,000 30,968 3.2 Increased in
California
1981 to 2004.
-------------------------------------------------------------------
Total................... 300 7,600 .............. 24.54 ...............
----------------------------------------------------------------------------------------------------------------
No takes by Level A harassment, serious injury, or mortality are
expected from the disturbance associated with the construction
activities. It is unlikely adult seals will flush into the water
injuring or abandoning any pups. No pupping is expected within the
footprint of the construction area as most pups are found along the
main channel of Elkhorn Slough. Pacific harbor seals have been hauling
out in the project area and within the greater Elkhorn Slough
throughout the year for many years (including during pupping season and
while females are pregnant) while being exposed to anthropogenic sound
sources such as recreational vessel traffic, UPRR, and other stimuli
from human presence. The number of harbor seals disturbed will likely
also fluctuate depending on time day and tidal stage. Fewer harbor
seals will be present in the early morning and approaching evening
hours as seals leave the haul out site to feed and they are also not
present when the tide is high and the haul out is inundated.
The following assumptions are made when estimating potential
incidences of take:
All marine mammal individuals potentially available are
assumed to be present within the relevant area, and thus incidentally
taken;
An individual can only be taken once during a 24-h period;
There were will be 136 total days of activity for project
(four days of pile driving and 132 construction activities); and
Exposures to sound levels at or above the relevant
thresholds equate to take, as defined by the MMPA.
Analyses and Determinations
Negligible Impact Analysis
NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``. . .
an
[[Page 16807]]
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.'' A negligible impact finding is based on the lack of likely
adverse effects on annual rates of recruitment or survival (i.e.,
population-level effects). An estimate of the number of Level B
harassment takes alone is not enough information on which to base an
impact determination. In addition to considering estimates of the
number of marine mammals that might be ``taken'' through behavioral
harassment, we consider other factors, such as the likely nature of any
responses (e.g., intensity, duration), the context of any responses
(e.g., critical reproductive time or location, migration), as well as
the number and nature of estimated Level A harassment takes, the number
of estimated mortalities, and effects on habitat.
Construction activities associated with this project have the
potential to disturb or displace marine mammals. No serious injury or
mortality is expected at all, and with mitigation we expect to avoid
any potential for Level A harassment as a result of the Minhoto-Hester
Marsh construction activities, and none are authorized by NMFS. The
specified activities may result in take, in the form of Level B
harassment (behavioral disturbance) only, from visual disturbance and/
or noise from construction activities. The project area is within a
portion of the local habitat for harbor seals of the greater Elkhorn
Slough and seals are present year-round. Behavioral disturbances that
could result from anthropogenic sound or visual disturbance associated
with these activities are expected to affect only a small amount of the
total population (i.e., likely maximum of 250 seals), although those
effects could be recurring over the life of the project if the same
individuals remain in the project vicinity. Harbor seals may avoid the
area or halt any behaviors (e.g., resting) when exposed to
anthropogenic noise or visual disturbance. Due to the abundance of
suitable haul out habitat available in the greater Elkhorn Slough, the
short-term displacement of resting harbor seals is not expected to
affect the overall fitness of any individual animal.
Effects on individuals that are taken by Level B harassment, on the
basis of reports in the literature as well as monitoring from other
similar activities, will likely be limited to reactions such as
displacement from the area or disturbance during resting. The
construction activities analyzed here are similar to, or less impactful
than for Parson's Slough (and other projects) which have taken place
with no reported injuries or mortality to marine mammals, and no known
long-term adverse consequences from behavioral harassment. Repeated
exposures of individuals to levels of noise or visual disturbance that
may cause Level B harassment are unlikely to result in hearing
impairment or to significantly disrupt foraging behavior. Many animals
perform vital functions, such as feeding, resting, traveling, and
socializing, on a diel cycle (i.e., 24 hour cycle). Behavioral
reactions (such as disruption of critical life functions, displacement,
or avoidance of important habitat) are more likely to be significant if
they last more than one diel cycle or recur on subsequent days
(Southall et al., 2007). However, Pacific harbor seals have been
hauling out at Elkhorn Slough during the year for many years (including
during pupping season and while females are pregnant) while being
exposed to anthropogenic sound and visual sources such as vessel
traffic, UPRR trains, and human voices from kayaking. Harbor seals have
repeatedly hauled out to rest (inside and outside the project area) or
pup (outside of the project area) despite these potential stimuli. The
activities are not expected to result in the alteration of reproductive
or feeding behaviors. No births have been documented in the project
area and it is not likely that neonates will be in the project area as
females prefer to keep their pups along the main channel of Elkhorn
Slough, which is outside the area expected to be impacted by project
activities. Seals are primarily foraging outside of Elkhorn Slough and
at night in Monterey Bay, outside the project area, and during times
when construction activities are not occurring.
Pacific harbor seals, as the potentially affected marine mammal
species under NMFS jurisdiction in the action area, are not listed as
threatened or endangered under the ESA and NMFS SARs for this stock
have shown that the population is increasing and is considered stable
(Carretta et al., 2016). Even repeated Level B harassment of some small
subset of the overall stock is unlikely to result in any significant
realized decrease in viability for the affected individuals, and thus
will not result in any adverse impact to the stock as a whole. The
restoration of the marsh habitat will have no adverse effect on marine
mammal habitat, but possibly a long-term beneficial effect on harbor
seals by improving ecological function of the slough, inclusive of
higher species diversity, increased species abundance, larger fish, and
improved habitat.
In summary, this negligible impact analysis is founded on the
following factors: (1) The possibility of injury, serious injury, or
mortality may reasonably be considered discountable; (2) the
anticipated incidents of Level B harassment consist of, at worst,
temporary modifications in behavior; (3) primary foraging and
reproductive habitat are outside of the project area and the
construction activities are not expected to result in the alteration of
habitat important to these behaviors or substantially impact the
behaviors themselves; (4) there is alternative haul out habitat just
outside the footprint of the construction area, along the main channel
of Elkhorn Slough, and in Parson's Slough that will be available for
seals while some of the haul outs are inaccessible; (5) restoration of
the marsh habitat will have no adverse effect on marine mammal habitat,
but possibly a long-term beneficial effect; (6) and the presumed
efficacy of the mitigation measures in reducing the effects of the
specified activity to the level of least practicable impact. In
addition, these stocks are not listed under the ESA or considered
depleted under the MMPA. In combination, we believe that these factors,
as well as the available body of evidence from other similar
activities, demonstrate that the potential effects of the specified
activities will have only short-term effects on individuals. The
specified activities are not expected to impact rates of recruitment or
survival and will therefore not result in population-level impacts.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures, we preliminarily find that the total marine mammal take from
the construction activities will have a negligible impact on the
affected marine mammal species or stocks.
Small Numbers Analyses
The number of incidents of take authorized for harbor seals is
considered small relative to the relevant stock and populations (see
Table 4) even if each estimated taking occurred to a new individual.
This is an extremely unlikely scenario as, for pinnipeds in estuarine/
inland waters, there is likely to be some overlap in individuals
present day-to-day. As noted above, we assume that a maximum of 250
seals will be impacted during the course of this specified activity.
While we cannot say that the same 250 individual seals
[[Page 16808]]
would be affected, we believe that there is a minimal exchange of
individuals over time and that the number of individuals would not be
appreciably larger than this. We preliminarily find that small numbers
of marine mammals will be taken relative to the populations of the
affected species or stocks.
Impact on Availability of Affected Species for Taking for Subsistence
Uses
There are no relevant subsistence uses of marine mammals implicated
by these actions. Therefore, we have determined that the total taking
of harbor seals will not have an unmitigable adverse impact on the
availability of such species or stocks for taking for subsistence
purposes.
Endangered Species Act (ESA)
No ESA-listed marine mammal species under NMFS' jurisdiction are
expected to be affected by these activities. Therefore, NMFS has
determined that a section 7 consultation under the ESA is not required.
National Environmental Policy Act
NMFS prepared an SEA and analyzed the potential impacts to marine
mammals that will result from the project. After reviewing the project,
NMFS determined the Minhoto-Hester Marsh restoration fell within the
scope and effects of activities analyzed in the NOAA Restoration
Center, Southwest Region Community-Based Restoration Program's (CRP)
August 2010 Targeted SEA (TSEA) for the Parson's Slough Project (the
adjoining salt marsh to the Minhoto-Hester Marsh and also within
Elkhorn Slough), as well as the February 6, 2002 Programmatic EA (PEA)
for the CRP Implementation Plan and the June 23, 2006 Supplemental PEA
the CRP Implementation Plan (SPEA). The impacts to ESA listed species
and marine mammals under the MMPA were analyzed in the TSEA, PEA, and
SPEA; however, updated as is relevant for this SEA. The SEA level of
review was conducted in accordance with the implementation procedures
described in the SPEA (specifically for Sediment Removal and Materials
Placement in the tidal wetlands environment) and appropriately focused
on consideration of effects to species listed under the ESA and
protected under the MMPA (e.g., noise, displacement, habitat quality/
quantity). Beyond consideration of site-specific effects to these
species, our review of the action did not reveal any substantial
changes in the action or new potentially significant adverse effects to
other elements of the human environment which would require additional
review in the SEA. NMFS considered comments submitted in response to
our Federal Register notice of the proposed IHA and the CADFW
application as part of the process. The FONSI was signed on November
15, 2016.
Authorization
As a result of these determinations, NMFS has issued an IHA to
CADFW for the harassment of small numbers of harbor seals incidental to
the Minhoto-Hester Marsh restoration project in Elkhorn Slough,
Monterey, California, effective for one year beginning August 1, 2017,
provided the previously mentioned mitigation, monitoring and reporting
requirements are incorporated.
Dated: March 31, 2017.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Services.
[FR Doc. 2017-06791 Filed 4-5-17; 8:45 am]
BILLING CODE 3510-22-P
