Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Elkhorn Slough Tidal Marsh Restoration Project, Phase II in California, 72308-72321 [2019-28211]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 250 (Tuesday, December 31, 2019)]
[Notices]
[Pages 72308-72321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28211]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XR059]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Elkhorn Slough Tidal Marsh 
Restoration Project, Phase II in California

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; proposed incidental harassment authorization; request 
for comments on proposed authorization and possible renewal.

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SUMMARY: NMFS has received a request from California Department of Fish 
and Wildlife (CDFW) for authorization to take marine mammals incidental 
to Elkhorn Slough Tidal Marsh Restoration Project, Phase II in 
California. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS 
is requesting comments on its proposal to issue an incidental 
harassment authorization (IHA) to incidentally take marine mammals 
during the specified activities. NMFS is also requesting comments on a 
possible one-year renewal that could be issued under certain 
circumstances and if all requirements are met, as described in Request 
for Public Comments at the end of this notice. NMFS will consider 
public comments prior to making any final decision on the issuance of 
the requested MMPA authorizations and agency responses will be 
summarized in the final notice of our decision.

DATES: Comments and information must be received no later than January 
30, 2020.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Physical comments should be sent to 
1315 East-West Highway, Silver Spring, MD 20910 and electronic comments 
should be sent to ITP. [email protected].
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act without change. All personal identifying 
information (e.g., name, address) voluntarily submitted by the 
commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Bonnie DeJoseph, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the application 
and supporting documents, as well as a list of the references cited in 
this document, may be obtained online at: https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. In case of problems accessing these 
documents, please call the contact listed above.

SUPPLEMENTARY INFORMATION: 

Background

    The MMPA prohibits the ``take'' of marine mammals, with certain 
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to 
allow, upon request, the incidental, but not intentional, taking of 
small numbers of marine mammals by U.S. citizens who

[[Page 72309]]

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 incidental take authorization may be 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) and will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for taking for subsistence uses 
(where relevant). Further, NMFS must prescribe the permissible methods 
of taking and other ``means of effecting the least practicable adverse 
impact'' on the affected species or stocks and their habitat, paying 
particular attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stocks for 
taking for certain subsistence uses (referred to in shorthand as 
``mitigation''); and requirements pertaining to the mitigation, 
monitoring and reporting of such takings are set forth.
    The definitions of all applicable MMPA statutory terms cited above 
are included in the relevant sections below.

National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, 
NMFS must review our proposed action (i.e., the issuance of an 
incidental harassment authorization) with respect to potential impacts 
on the human environment. This proposed action is consistent with 
categories of activities identified in Categorical Exclusion B4 
(incidental harassment authorizations with no anticipated serious 
injury or mortality) of the Companion Manual for NOAA Administrative 
Order 216-6A, which do not individually or cumulatively have the 
potential for significant impacts on the quality of the human 
environment and for which we have not identified any extraordinary 
circumstances that would preclude this categorical exclusion. 
Accordingly, NMFS has preliminarily determined that the issuance of the 
proposed IHA qualifies to be categorically excluded from further NEPA 
review.
    We will review all comments submitted in response to this notice 
prior to concluding our NEPA process or making a final decision on the 
IHA request.

Summary of Request

    On August 14, 2019, NMFS received a request from CDFW for an IHA to 
take marine mammals incidental to Elkhorn Slough Tidal Marsh 
Restoration Project, Phase II; e.g., using heavy equipment to restore 
58 acres of saltmarsh habitat. The application was deemed adequate and 
complete on November 4, 2019. California Department of Fish and 
Wildlife's request is for take of a small number of Pacific harbor 
seals (Phoca vitulina richardii) by Level B harassment only. Neither 
CDFW nor NMFS expects serious injury or mortality to result from this 
activity and, therefore, an IHA is appropriate.
    NMFS previously issued an IHA to CDFW for related work (Phase I of 
the Elkhorn Slough Tidal Marsh Restoration Project; XRIN 0648-XE687). 
CDFW complied with all the requirements (e.g., mitigation, monitoring, 
and reporting) of the previous IHA and information regarding their 
monitoring results may be found in the Estimated Take section.
    This proposed IHA would cover one year of a larger project for 
which CDFW obtained prior IHAs and intends to request take 
authorization for subsequent facets of the project. The larger project 
involves restoring 147 acres of vegetated tidal salt marsh, upland 
ecotone, and native grasslands in Monterey County. CDFW complied with 
all the requirements (e.g., mitigation, monitoring, and reporting) of 
the previous IHA and information regarding their monitoring results may 
be found in the Estimated Take section.

Description of Proposed Activity

Overview

    In response to years of anthropogenic degradation (e.g., diking and 
marsh draining), the CADFW seeks to restore 147 acres of vegetated 
tidal salt marsh, upland ecotone, and native grasslands of Elkhorn 
Slough (Monterey, California). Phase I of the Elkhorn Slough Tidal 
Marsh Restoration Project, completed in 2018, restored 61 acres of 
marsh. Phase II aims to restore 58 acres of saltmarsh habitat by using 
heavy equipment to relocate soil from an upland area, south of the 
Minhoto-Hester Restoration Area, within an 11 month work period. 
Construction activities are expected to produce airborne noise and 
visual disturbance that have the potential to result in behavioral 
harassment of Pacific harbor seals (Phoca vitulina richardii). NMFS is 
proposing to authorize take, by Level B Harassment, of Pacific harbor 
seals as a result of the specified activity.
    Over the past 150 years, human activities have altered the tidal, 
freshwater, and sediment processes, which are essential to support and 
sustain Elkhorn Slough's estuarine habitats. Fifty percent of the tidal 
salt marsh in the Slough has been lost during this time period. This 
habitat loss is primarily a result of two historic land use changes, 
(1) construction of a harbor at the mouth of the Slough and the related 
diversion of the Salinas River, which lead to increased tidal flooding 
(and subsequent drowning of vegetation) and (2) past diking and 
draining of the marsh for use as pasture land. The act of draining 
wetlands led to sediment compaction and land subsidence, from one to 
six feet. Decades later, the dikes began to fail, reintroducing tidal 
waters to the reclaimed wetlands. Rather than converting back to salt 
marsh, the areas converted to poor quality, high elevation intertidal 
mudflat, as the lowered landscape was inundated too frequently to 
support tidal marsh, and insufficient sediment supply was available in 
the tidal waters to rebuild elevation. The loss of riverine sediment 
inputs, continued subsidence of marsh areas, sea level rise, increased 
salinity, and increased nutrient inputs may also contribute to marsh 
loss (Watson et al., 2011). Bank and channel erosion in the Elkhorn 
Slough are also leading to deepening and widening tidal creeks, causing 
salt marshes to collapse into the channel, and eroding sediments that 
provide important habitat and support estuarine food webs.
    The proposed project involves using heavy equipment to raise, 
excavate, and reposition soil from the borrow area to the remnant marsh 
plain. It would improve marsh sustainability with sea level rise, as 
the restored marsh would be higher in the tidal frame, further from the 
drowning threshold, and marsh vegetation in the restored areas would 
accrete organic material that would help the restored marsh plain rise 
with sea level. It would also reduce tidal prism in Elkhorn Slough, 
reducing the potential for ongoing tidal scour and associated marsh 
loss. The Minhoto-Hester Restoration Area is key to restoring hydrology 
to the Phase I restoration area and the Seal Bend Restoration Area is 
important for both habitat restoration and to maintain the 
configuration of the main channel of Elkhorn Slough as the remnant 
levee in the area has almost disintegrated.

Dates and Duration

    Construction activities are anticipated to begin in January 2020, 
after all permits are secured, and take 11 months to complete. Some 
deviation in timing could result from unforeseen events

[[Page 72310]]

such as weather, logistical issues, or mechanical issues with 
construction equipment. If a break in construction activities does 
occur, the construction period will be extended by the length of the 
break without exceeding the one-year window permitted by this IHA. The 
construction period assumes that the construction contractors would 
work between sunrise and sunset, Monday through Friday. However, some 
construction activity may also be required during these times on 
Saturdays. Due to the nature and location of the proposed work 
schedule, the potential exposure to Pacific harbor seals would be 
confined to six of the 11 months (180 days).

Specific Geographic Region

    The proposed project is located in the Elkhorn Slough estuary, 
situated 90 miles south of San Francisco and 20 miles north of 
Monterey, is one of the largest estuaries in CA, and contains the 
State's largest salt marshes south of San Francisco Bay (see Figure 1. 
of the application). Specifically, the project sites are located on 
land owned and operated by CADFW as part of the Elkhorn Slough 
Ecological and National Estuarine Research Reserves. The waters of the 
Elkhorn Slough State Marine Reserve and Monterey Bay National Marine 
Sanctuary run north of Phase II's project sites in Elkhorn Slough's 
main channel. Two additional Marine Protected Areas are located within 
approximately one mile of the project site: Elkhorn Slough State Marine 
Conservation Area and Moro Cojo Slough State Marine Reserve.
    The Elkhorn Slough system is a network of intertidal marshes, 
mudflats, and subtidal channels located at the center of the Monterey 
Bay shoreline. With an average depth of 4.6 feet, it is the deepest at 
the SR 1 bridge overcrossing where it measures 25 feet deep at mean 
lower low water (MLLW). The main channel in Elkhorn Slough becomes 
narrower and shallower as it winds inland.
    Phase II work would occur within two tidal restoration areas: The 
Minhoto-Hester Restoration Area (subareas M4a-b, M5, and M6) and the 
Seal Bend Restoration Area (subareas S1-S4) (see Figure 2 from 
application), 29.3 and 28.6 acres, respectively. Both are low-lying 
areas consisting of subsided pickleweed marsh, intertidal mudflats, 
tidal channels, and remnant levees. The Minhoto-Hester Marsh has 
multiple cross-levees as well as, natural and dredged channels with a 
major dredged channel (100+ ft. wide in some locations) that runs north 
to south through the remnant marsh. Seal Bend has also has been divided 
by multiple cross-levees, and has the heavily eroded remnants of a 
perimeter levee along its outboard side. A large borrow channel is 
located adjacent to the interior of the perimeter levee.
    Mixed use lands encompass the slough's boundaries; their activities 
may influence anticipated behavioral responses and ambient noise 
levels. To the north are hilly uplands and marine terraces that lie 
between the Pajaro and Salinas valleys. Upland areas drain into Elkhorn 
Slough through numerous small ephemeral creeks. The largest of these is 
Carneros Creek at the head of the estuary. Land use in these uplands 
consists of agriculture (primarily strawberries and other row crops), 
cattle grazing, rural residences, and the small town of Las Lomas. 
Wetlands, mudflats, and marsh areas on both sides of Elkhorn Slough 
characterize the immediate project setting. Located at the mouth of the 
bay, a marina and kayak rentals accommodate recreational boaters. 
Recreational vessels are restricted to the main channel of Elkhorn 
Slough, just outside the project area. To the south of Elkhorn Slough 
is an industrial park that comprises a natural gas powered electricity 
plant and a chemical plant. Southeast of Seal Bend is a dairy farm and 
further east, south of Yampah Marsh, is a vehicle dismantling and 
recycling yard. The Union Specific Railroad (UPRR) traverses the 
reserve, north to south, east of the main channel.

Detailed Description of Specific Activity

    Phase II plans to restore 58-acres of saltmarsh habitat, including 
53-acres of subsided marsh within the Minhoto-Hester Restoration Area 
(sub-areas M4a-b, M5, and M6) and the Seal Bend Restoration Area 
(subareas S1-S4); 2 acres of tidal channels and an additional 3 acres 
of intertidal salt marsh created at an upland borrow area. To restore 
hydrologic function to the project area they propose raising the 
subsided marsh plain, maintaining or re-excavating the existing tidal 
channels, and excavating within the upland buffer area to restore marsh 
plain, ecotone, and native grassland habitat.
    Up to 276,000 cubic yards (CY) of soil will be obtained from an 
upland borrow area, south of the Minhoto-Hester Restoration Area (see 
Figure 2 from the application), to raise the marsh plain elevations to 
allow emergent wetland vegetation to naturally reestablish and 
persevere. Sediment would be placed to a fill elevation slightly higher 
than the target marsh plain elevation permitting settlement and 
consolidation of the underlying soils. The average fill depth would be 
2.1 feet, including 25 percent overfill.
    Table 1 (same as Table 1 from the application) below presents the 
acreages and extents of proposed fill within each marsh sub-area, as 
well as the volume of fill required for each marsh sub-area to be 
restored. The upland borrow area, onsite, would be used as the fill 
source. The project would rely primarily on natural vegetation 
recruitment in the restored marsh areas.

[[Page 72311]]

[GRAPHIC] [TIFF OMITTED] TN31DE19.006

Water Control and Tidal Channels of the Restoration Area
    Work areas on the remnant marsh plain would for the most part be 
isolated from the tides and dewatered to allow work in non-tidal 
conditions. Water control structures such as temporary berms, 
constructed without the use of pile driving, would be utilized to 
isolate the fill placement area during the construction period; note, 
that while we refer to the work broadly as ``construction,'' no 
permanent installation of structures is included. Existing berms would 
be used, where possible, and tidal channels in this area will be 
blocked. The isolated work areas would be drained using a combination 
of gravity and pumps. Water levels within the blocked areas would be 
managed to keep them mostly free of water (with some ponded areas 
remaining) and to allow fill placement at all stages of the tides. To 
reduce the potential for fish to become entrained in isolated ponded 
areas, blocking of tidal channels would occur at low tide. When 
sediment placement is completed, the berms would be lowered to the 
target marsh elevation, reintroducing tidal inundation.
    Remnant historic channels onsite would generally be left in place 
or filled and re-excavated in the same place. As needed for marsh 
access, smaller channels would be filled. Avoidance of channel fill, 
temporary and permanent, is preferred. As much of the existing tidal 
channel network would be maintained as is feasible, and the post-
project channel alignments would be similar to those under existing 
conditions. The density of channels (length of channel per acre of 
marsh) after restoration would be comparable to the density in natural 
reference marshes. Low levees (less than 0.5 feet above the marsh 
plain) composed of fill material would be constructed along the larger 
channels to simulate natural channel levees. Fill would be placed as 
close to the edge of the channel as possible to simulate the form and 
function of a natural channel bank. Borrow ditches that date from the 
times of historical wetland reclamation in these areas would be blocked 
or filled completely if fill is available after raising the marsh 
plain. Blocking borrow ditches would route more flow through the 
natural channels and slightly increase hydraulic resistance, which may 
achieve benefits from reducing tidal prism and associated scour in the 
Elkhorn Slough system.
    To limit trip distances onto the marsh, the project would employ 
one or more of the following placement approaches. Temporary channel 
crossings may be constructed, or tidal channels may be temporarily 
filled and then re-dug with an excavator or backhoe. If re-excavation 
of the smaller channels proves infeasible, these channels may be 
permanently filled, the resulting channel extent consisting of the 
larger channels only. The resulting channel extent would be sufficient 
to provide drainage and tidal exchange to support natural marsh 
functions. The number and locations of channel crossings would depend 
on the tradeoff between haul distances and the ease of installing and 
removing the crossings. Where tidal channels were maintained in place, 
turbidity control measures (i.e., Best Management Practices [BMPs]), 
such as hay bales or weed free straw wattles) could be staked down in 
or adjacent to the channels to be preserved. Bulldozers would push fill 
up to the hay bales and wattles, but not into the channels. Channel 
crossings and BMPs would be removed at project completion.

Buffer Area

    The buffer area would be graded to create an ecotone band along the 
edge of the restored marsh and/or native grassland habitat (see Figure 
2. of the application). Specifically, about three acres of the buffer 
area would be graded to create intertidal salt marsh and five acres 
would be revegetated with native dominated perennial grassland adjacent 
to subareas M4 and M5. The native grassland areas would be revegetated 
by reducing the weed seed bank and planting native grasses/forbs. A 
weed-resistant border of rhizomatous perennial plants that readily 
spreads (e.g., creeping wild rye [Elymus triticoides] or Santa Barbara 
sedge [Carex barbarae]) would be planted between the grassland and 
ecotone. Remaining scraped areas within the borrow area would be 
planted in a cover crop until local material is propagated to expand 
grassland restoration.

[[Page 72312]]

Construction Sequencing and Equipment

    Construction sequencing would begin with water management and/or 
turbidity control measures constructed around the work areas prior to 
placing material on the marsh. After fill placement on the marsh, any 
temporary features, such as water management berms would be removed. 
Construction equipment would include haul trucks, heavy earthmoving 
equipment, such as dozers, backhoes, loaders, and excavators to 
transport dry material out onto the marsh. All heavy equipment used to 
transport dry material out onto the marsh would be of low ground 
pressure to prevent sinking in the mud. Mats would be temporarily 
placed on the marsh, as needed, to spread the weight of the equipment. 
At the end of construction in each cell/stage, any elevated haul roads 
and/or berms constructed to aid in material placement would be 
excavated to design grades, with the resulting earth used to fill 
adjacent restoration areas.
    Proposed mitigation, monitoring, and reporting measures are 
described in detail later in this document (please see Proposed 
Mitigation and Proposed Monitoring and Reporting).

Description of Marine Mammals in the Area of Specified Activities

    Sections 3 and 4 of the application summarize available information 
regarding status and trends, distribution and habitat preferences, and 
behavior and life history, of the potentially affected species. 
Additional information regarding population trends and threats may be 
found in NMFS's Stock Assessment Reports (SARs; https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments) and more general information about these species 
(e.g., physical and behavioral descriptions) may be found on NMFS's 
website (https://www.fisheries.noaa.gov/find-species).
    Table 2 lists all species with expected potential for occurrence in 
Elkhorn Slough and summarizes information related to the population or 
stock, including regulatory status under the MMPA and ESA and potential 
biological removal (PBR), where known. For taxonomy, we follow 
Committee on Taxonomy (2016). PBR is 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 (as described in NMFS's 
SARs). While no mortality is anticipated or authorized here, PBR and 
annual serious injury and mortality from anthropogenic sources are 
included here as gross indicators of the status of the species and 
other threats.
    Marine mammal abundance estimates presented in this document 
represent the total number of individuals that make up a given stock or 
the total number estimated within a particular study or survey area. 
NMFS's stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in 
NMFS's U.S. Marine Mammal SARs: 2015 (Carretta et al.). All values 
presented in Table 2 are the most recent available at the time of 
publication and are available in the 2018 SARs (Carretta et al., 2018) 
and draft 2019 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                                         Table 2--Harbor Seal Status Information
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          ESA/MMPA status;   Stock abundance (CV,
             Common name                  Scientific name               Stock             strategic (Y/N)      Nmin, most recent       PBR     Annual M/
                                                                                                \1\          abundance survey) \2\               SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
    Pacific Harbor Seal.............  Phoca vitulina          California...............  -;N                30,968 seals (CV =          1,641         43
                                       richardii.                                                            0.157,Nmin = 27,348,
                                                                                                             2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 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\ NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of
  stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
  commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
  associated with estimated mortality due to commercial fisheries is presented in some cases.
Note--Italicized species are not expected to be taken or proposed for authorization.

    As described below, the Pacific harbor seal temporally and 
spatially co-occur with the activity to the degree that take is 
reasonably likely to occur, and we have proposed authorizing it.
    In addition, the Southern sea otter (Enhydra lutris nereis) may be 
found in Elkhorn Slough. However, the Southern sea otter is managed by 
the U.S. Fish and Wildlife Service and are not considered further in 
this document.

Local Abundance and Habitat Use

    Pacific harbor seals use Elkhorn Slough for hauling out, resting, 
socializing, foraging, molting, and reproduction, but mainly use it as 
a staging area for foraging in the Monterey Bay, as there is a limited 
amount of foraging in the Slough (McCarthy 2010). They are central 
place foragers, tend to exhibit strong site fidelity within-season and 
across years, generally forage close to haul-out sites, and may 
repeatedly visit specific foraging areas (Grigg et al., 2012). Harbor 
seals inhabit Elkhorn Slough year-round and occur individually or in 
groups, but their abundance may change seasonally depending on prey 
availability, molting and reproduction (McCarthy 2010). Molting takes 
place each summer after pupping, when harbor seals haul out more 
frequently and for longer periods, than in autumn or winter (Stewart 
and Yochem 1994).

[[Page 72313]]

    Counts of harbor seals in the greater Elkhorn Slough began in 1975 
and at that time averaged about 30 seals (Harvey et al., 1995, Oxman 
1995). The population in the greater Elkhorn Slough is currently 
estimated at 300 to 500 seals (McCarthy 2010). Harbor seal count data 
as reported were collected from a variety of sources using various 
methodologies. Data on harbor seal use near the project area is derived 
from marine mammal monitoring data collected by the Reserve Otter 
Monitoring Project (Elkhorn Slough National Estuarine Research Reserve 
2018) and Phase I construction monitoring (Fountain et al., 2019).
    Harbor seals have utilized the Elkhorn Slough as a resting site 
since the 1970s, but the first births were not recorded until 1991 
(Maldini et al., 2010). From 1995 to 1997, there was a significant 
annual increase in pups, from 14 seals in 1995 to 29 seals in 1997 
(Richman, 1997). The increase of the Elkhorn Slough population and 
pupping frequency is attributed to a combination of three major 
factors: Overall increase in abundance leading to increased competition 
for space and population expansion, migration of young seals to the 
area, and decreased harassment by humans. Furthermore, marine mammal 
experts speculate the increase was due to removal of public restrooms 
from the Seal Bend area in the early 1990s (McCarthy 2010). Pupping can 
occur throughout the year, but generally starts in late March and peaks 
in May. Some seals may depart during pupping/breeding season to other 
breeding areas outside of Elkhorn Slough. Females tend to remove 
themselves from the group to give birth and return within a week 
(McCarthy 2010). In 2010, 50 pups were observed in Elkhorn Slough (J. 
Harvey unpublished data in McCarthy, 2010), but the specific location 
within the Slough was not documented and the applicant indicates that 
they have not documented births within the project area.

Seal Haul Outs Potentially Impacted by Project Activities

    Harbor seals prefer areas with full tidal exchange; McCarthy (2010) 
reports them frequenting areas just beyond the mouth of Elkhorn Slough 
in the Moss Landing harbor and in the Salinas River channel south of 
the Moss Landing bridge, and the lower portion of Elkhorn Slough 
extending up to Parsons Slough and Rubis Creek. Figure 3 from the 
application, depicts known and potential haul[hyphen]out areas used by 
harbor seals proximate to the project area. They typically use the 
corridor from the mouth of Elkhorn Slough through the Moss Landing 
Harbor entrance for nightly feeding in Monterey Bay (J. Harvey, pers. 
comm. in McCarthy, 2010). In a diet study conducted between 1995 and 
1997, 35 species including topsmelt, white croaker, spotted cusk-eel, 
night smelt, bocaccio, Pacific herring, a brachyuran crustacean, and 4 
genera of mollusks were consumed by harbor seals (Harvey et al., 1995, 
McCarthy 2010).
    For Phase II restoration activities, the ``Seal Bend'' observation 
area is most representative of seal use at the Seal Bend restoration 
area; the ``Hester 2'' observation area is most representative of seal 
use at the Minhoto-Hester restoration area. Other monitoring locations 
that may support seals that transit or haul out near the proposed Phase 
II restoration areas and that could be disturbed by construction 
activities include ``Wildlife'', ``Moon Glow'', ``Upper Dairy (also 
referred to as ``Main Channel''), ``Yampah'', and ``Avila''. Excluding 
the haul-outs in the project area during construction would temporarily 
remove less than 2% of the potential haul-out areas in the slough 
(i.e., based on similar tidal range).

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity may impact marine mammals and 
their habitat. The Estimated Take by Incidental Harassment section 
later in this document includes a quantitative analysis of the number 
of individuals that are expected to be taken by this activity. The 
Negligible Impact Analysis and Determination section considers the 
content of this section, the Estimated Take by Incidental Harassment 
section, and the Proposed Mitigation section, to draw conclusions 
regarding the likely impacts of these activities on the reproductive 
success or survivorship of individuals and how those impacts on 
individuals are likely to impact marine mammal species or stocks.
    Harbor seals that use the haul-out sites Seal Bend and Hester 2, 
within and near the footprint of the construction areas (as described 
in the previous section, Description of Marine Mammals in the Area of 
Specified Activities) may potentially experience behavioral disruption 
rising to the level of harassment from construction activities. This 
may include visual disturbance due to the presence and activity of 
heavy equipment, construction workers, and biological monitors, as well 
as airborne noise from the equipment. 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.
    Construction activities have the potential to cause behavioral 
harassment to seals that may be hauling out, resting, foraging, or 
engaging in other activities either inside or near the project area. 
Human disturbance of harbor seals can strongly affect their abundance 
and distribution in estuaries. Some or all of the seals present would 
be expected to move or flush in response to the presence of crew and 
equipment, though some may remain hauled out. Individuals or groups of 
seals can experience levels of behavioral disturbance along a continuum 
of responses: (1) Lifting the head and/or sitting up (alert), (2) 
movement, or (3) retreating to the water (flushing). The level of human 
disturbance to seals is dependent on various factors, such as how the 
site is used by seals, proximity of disturbance (Allen et al., 1984, 
Osborn 1985, Suryan and Harvey 1999), and duration and frequency of 
disturbances (Osborn 1985). The impacts of temporary or permanent site 
abandonment (flight) due to disturbance can include changes in haul-out 
pattern, which can also affect feeding patterns, and, potentially, 
reduce pup survival from mother/pup separation and interrupted suckling 
bouts if disturbance were to occur in longer durations in the vicinity 
of mother-pup pairs. Tolerance to disturbance may be lower during 
pupping season (Osborn 1985).

Anthropogenic Airborne Sound Levels

    Because of the various activities within and surrounding Elkhorn 
Slough, as discussed in the Specific Geographic Region Section above, 
resident seals may already be habituated to noise from these 
established human activities. Noise levels were monitored during a 
restoration project at Parson's Slough, adjacent to Minhoto-Hester 
Marsh, in 2010 and 2011. Background noise during that project was 
approximately 57 dBC Lmax (dbC can be defined as dB with C-
weighting which is a standard weighting of the audible frequencies 
commonly used for the measurement of Peak Sound Pressure Level [SPL] 
and Lmax is defined as the maximum sound level during a 
single noise event) as measured at 20 and 40 meters northeast of the 
pile installation site and approximately 1.5 meters above the ground 
(ESNERR 2011). Approximately 15 to 20 trains pass along the UPRR each 
day, which is located within 400 feet of the eastern-most portion of 
the project site (Vinnedge Environmental Consulting 2010). Noise levels 
from trains were

[[Page 72314]]

monitored during construction of the Parson's Slough Project and 
estimated at 108 dBC Lmax. Noise is also generated from 
Pick-n-Pull, a vehicle dismantling yard and recycling yard, located 
approximately 300 feet from the project site. Lastly, agricultural 
equipment operated within the existing uplands and haul trucks that 
travel regularly across adjacent agricultural lands and along nearby 
levees, also contribute to the ambient noise of Elkhorn Slough.
    Although no specific measurements have been made at the project 
area, it is reasonable to believe that levels may generally be similar 
to the previous project at Parson's Slough as there is a similar type 
and degree of activity within the same type of environment (tidal salt 
marsh). Known sound levels and frequency ranges associated with 
anthropogenic sources similar to those associated to this project are 
summarized in Table 3.

Table 3--Representative Airborne Sound Levels of Anthropogenic Sources--
                             dB re: 20[mu]Pa
------------------------------------------------------------------------
        Sound source          Airborne sound level        Reference
------------------------------------------------------------------------
Heavy Earth Moving Equipment  80-90 dB at 15.24 m.  FHWA, 2015.
 (i.e., excavators,
 backhoes, and front
 loaders).
UPPR trains.................  108 dBC Lmax at 20 m  ESNERR, 2011
                               and 40 m (northeast   (Parson's Slough).
                               of the pile
                               installation).
------------------------------------------------------------------------

    Airborne noise associated with this project includes noise from 
construction activities during the restoration of the tidal marsh. 
Airborne noise produced from earth moving equipment (i.e., backhoes, 
front end loaders) for construction, may produce sound levels at 80 to 
90 dB at 15.24 m (FHWA, 2015) (Table 3). The construction activity may 
generate noise above ambient levels or create a visual disturbance for 
a period of 11 months; however, the exact distance of disturbance from 
noise is unknown. Trains along the UPRR likely generate fairly high 
noise levels in the eastern portion of the project area, so earth 
moving equipment operated in this area may not elevate ambient noise 
levels when trains are present.
    Anthropogenic airborne sound could cause hauled out pinnipeds to 
exhibit changes in their normal behavior, such as reduction in 
vocalizations, or cause them to move further from the source or 
temporarily abandon their habitat. Studies by Blackwell et al., (2004) 
and Moulton et al., (2005) indicate a tolerance or lack of response to 
unweighted airborne sounds as high as 112 dB peak and 96 dB root mean 
square (rms).
    Due to the nature of the activities, it is unlikely that injurious 
or lethal takes would occur even in the absence of the planned 
mitigation and monitoring measures. Further, the proposed mitigation 
and monitoring measures are expected to minimize the possibility of 
take by Level A harassment, such that it is not addressed further. 
During the 9-month construction window associated with Phase I 
construction, marine mammal monitoring was required and implemented on 
89 days (976 hours of monitoring). During this period, there were 19 
observed incidents of Level B harassment of harbor seals (flushing or 
movement) that were recorded by the monitors. Of these, 16 incidents, 
representing harassment of 62 individual seals, were attributed to 
construction activity or marine mammal monitoring; the remaining three 
incidents were unrelated to the project (e.g., seals flushing as a 
result of a passing boat in Elkhorn Slough) (Table 3 in the 
application). When Level B harassment occurred, it was always when 
seals were within 300 meters of the disturbance source; most were when 
distances were 100 meters or less (Fountain et al. 2019). In addition, 
not all seals located in the vicinity of the disturbance flushed or 
moved during each discrete incident; for example, in nine incidents, 
less than one third of the seals present in the area flushed. Relative 
to the average number of seals observed per day during monitoring, 
approximately 2% were disturbed by construction or monitoring 
activities. Seals that move or flush are expected to use other areas of 
the slough available as haul out sites.

Changes to Habitat

    The primary potential impact to marine mammal habitat associated 
with the construction activity is the 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 would 
temporarily remove less than 2% of the potential haul out areas in 
Elkhorn Slough. Although the proposed action would permanently alter 
habitat within the footprint of the construction area, harbor seals 
haul out in many locations throughout the estuary, and the proposed 
activities are not expected to have any habitat-related effects that 
could cause significant or long-term consequences for individual harbor 
seals or their population. The restoration of the marsh habitat will 
have no adverse long-term 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.
    Harbor seals that use the eastern portion of the Minhoto-Hester 
Restoration Area (up to 50 seals) would be inhibited from hauling-out 
or resting within the project area during the 11-month construction 
period. The site would be isolated outside of the peak-pupping season 
to avoid impacts to mothers with pups. Non-breeding seals that would 
have utilized the project area for hauling-out or resting would be 
displaced. However, seals could use other areas of Elkhorn Slough for 
resting and haul-out during construction, which would minimize impacts 
to seals.
    Conversion of mudflat back to tidal marsh will have an overall 
beneficial effect on the Elkhorn Slough system and possibly increase 
habitat for harbor seals. Harbor seals use a small portion of the 
channel edges within the subsided marsh (now mudflat). By raising the 
elevation of the marsh, and increasing the extent of tidal marsh, tidal 
prism would be reduced and possibly increase the extent of haul-out 
habitat (McCarthy 2010). This reduction would slow erosion and sediment 
and marsh loss within the slough system. It is expected to reduce the 
loss of soft sediment habitat within the slough that support prey 
species of marine mammals.
    Increasing the extent of tidal marsh would also improve water 
quality by establishing a buffer to absorb upland contaminants and 
agricultural runoff coming from the Old Salinas River mouth. Improved 
water quality could increase prey abundance and decrease toxin 
concentrations in seal tissues resulting in a positive effect on harbor 
seal abundance and distribution (McCarthy 2010).

[[Page 72315]]

Estimated Take

    This section provides an estimate of the number of incidental takes 
proposed for authorization through this IHA, which will inform both 
NMFS' consideration of ``small numbers'' and the negligible impact 
determination.
    Harassment is the only type of take expected to result from these 
activities. 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).
    Authorized takes would be by Level B harassment only, in the form 
of disruption of behavioral patterns for individual marine mammals 
resulting from exposure to the stressor/s--pedestrian traffic, 
biological monitors, construction workers, and use of heavy machinery. 
Based on the nature of the activity, Level A harassment is neither 
anticipated nor proposed to be authorized.
    As described previously, no mortality is anticipated or proposed to 
be authorized for this activity. Below we describe how the take is 
estimated.
    Generally speaking, we estimate take by considering: (1) Acoustic 
thresholds above which NMFS believes the best available science 
indicates marine mammals will be behaviorally harassed or incur some 
degree of permanent hearing impairment; (2) the area or volume of water 
or air that will be ensonified above these levels in a day; (3) the 
density or occurrence of marine mammals within these ensonified areas; 
and, (4) and the number of days of activities. We note that while these 
basic factors can contribute to a basic calculation to provide an 
initial prediction of takes, additional information that can 
qualitatively inform take estimates is also sometimes available (e.g., 
previous monitoring results or average group size). Below, we describe 
the factors considered here in more detail and present the proposed 
take estimate.

Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic 
thresholds that identify the received level of underwater sound above 
which exposed marine mammals would be reasonably expected to be 
behaviorally harassed (equated to Level B harassment) or to incur PTS 
of some degree (equated to Level A harassment). Thresholds have also 
been developed identifying the received level of in-air sound above 
which exposed pinnipeds would likely be behaviorally harassed.
    Level B Harassment for non-explosive sources--Though significantly 
driven by received level, the onset of behavioral disturbance from 
anthropogenic noise exposure is also informed to varying degrees by 
other factors related to the source (e.g., frequency, predictability, 
duty cycle), the environment (e.g., bathymetry), and the receiving 
animals (hearing, motivation, experience, demography, behavioral 
context) and can be difficult to predict (Ellison et al., 2012, 
Southall et al., 2007). Based on what the available science indicates 
and the practical need to use a threshold based on a factor that is 
both predictable and measurable for most activities, NMFS uses a 
generalized acoustic threshold based on received level to estimate the 
onset of behavioral harassment. NMFS predicts that marine mammals are 
likely to be behaviorally harassed in a manner we consider Level B 
harassment when exposed to underwater anthropogenic noise above 
received levels of 120 dB re 1 microPascal ([mu]Pa), (rms) for 
continuous (e.g., vibratory pile-driving, drilling) and above 160 dB re 
1 [mu]Pa (rms) for non-explosive impulsive (e.g., seismic airguns) or 
intermittent (e.g., scientific sonar) sources. For in-air sounds, NMFS 
predicts that harbor seals exposed above received levels of 90 dB re 20 
[mu]Pa (rms) will be behaviorally harassed, and other pinnipeds will be 
harassed when exposed above 100 dB re 20 [mu]Pa (rms).
    CDFW's Elkhorn Slough Tidal Marsh Restoration Project, Phase II 
includes the use of intermittent (construction activities) airborne 
noise and visual disturbances, and therefore the 90 dB re 20 [mu]Pa 
(rms) is applicable. We note, however, that the take estimates 
(described in detail below) are based on occurrence in the general 
area, rather than within any specific isopleth.
    As indicated above, no Level A harassment is anticipated.

Marine Mammal Occurrence

    In this section we provide the information about the presence, 
density, or group dynamics of marine mammals that will inform the take 
calculations.
    Data on harbor seal use near the project area is derived from 
marine mammal monitoring data collected by the Reserve Otter Monitoring 
Project (ESNERR 2018) and Phase I construction monitoring (Fountain et 
al., 2019).
    The Reserve Otter Monitoring Project has been monitoring otter 
movement and behavior in Elkhorn Slough since 2011. This effort has 
been a collaboration between ESNERR, Monterey Bay Aquarium, United 
State Geologic Survey and University of California Santa Cruz. In 
January of 2018, they added seals to their observations, and have 
compiled monitoring data for seals through April 2019. During this time 
period, biologists conducted weekly monitoring at nine locations along 
Elkhorn Slough and five locations in Moss Landing Harbor (Figure 4. in 
the application). Seal and otter counts were completed every Tuesday, 
every half hour on the hour and half hour, from 10 a.m.-12 p.m. Eight 
teams were positioned concurrently throughout the estuary using high-
powered binoculars and scopes to see otters and seals. Data collected 
included weather, observation time, tide, the number and species of 
marine mammal sited, and the location they were observed. All 
monitoring was completed by or under the supervision of a qualified 
biologist previously approved by USFWS and NOAA Fisheries for marine 
mammal monitoring.
    Figure 5 (from the application) and Table 4 below, summarizes the 
maximum number of seals observed by location on a single day of 
monitoring, June 19, 2018. In addition, the maximum and average number 
of seals observed during an hourly count at each of the seven monitored 
locations proximate to the Phase II restoration areas over the 16-month 
observation period (i.e., January 2018 to April 2019) are presented in 
Table 4. Since the maximum and average seal counts were collected from 
various days between January 2018 and April 2019, duplicate counts 
(i.e., recording the same seal more than once), are considered highly 
probable. These data are consistent with previous

[[Page 72316]]



                         Table 4--Harbor Seal Counts by Reserve Otter Monitoring Project
----------------------------------------------------------------------------------------------------------------
                                                                                         Hourly counts \3\
                          Location \1\                             Highest daily -------------------------------
                                                                     count \2\        Maximum         Average
----------------------------------------------------------------------------------------------------------------
Wildlife........................................................              88             106              41
Seal Bend.......................................................              59              86              24
Moonglow........................................................              56              87              16
Hester..........................................................               0              33               5
Main Channel....................................................               0             100              30
Yampah..........................................................              93              81              18
Avila...........................................................               1             122              32
                                                                 -----------------------------------------------
    Total.......................................................             417             615             166
----------------------------------------------------------------------------------------------------------------
\1\ See Figure 4 (from application) for location of observation area. ``Harbor'' includes incidental counts
  outside of formal observation areas.
\2\ Represents highest count of seals recorded on a single day, June 19, 2018, during hourly counts.
\3\ Represents maximum and average number or seals observed during an hourly count at any location from
  monitoring dates between January 2018 and April 2019 by Reserve Otter Monitoring Project.

population estimates by McCarthy (2010), which estimated the population 
of seals in Elkhorn Slough at 300 to 500, with seasonal variability 
based on prey availability, molting and reproduction. The data also 
illustrate that seals tend to move between areas proximate to each 
other. For example, when large numbers of seals were observed in 
Parsons Slough (``Avila'') in the summer of 2018, there was a 
comparable decline in the number of seals observed at Seal Bend (Figure 
5, in the application).
    During Phase I construction, marine mammal monitoring was required 
and implemented on 89 days (976 hours of monitoring) within the 9-month 
construction window. An average of 75 seals were recorded by marine 
mammal monitors in the observation area at any given time, and up to 
257 individual seals were observed near the Phase I restoration area in 
a given day. Nineteen incidents of Level B harassment of harbor seals 
(flushing or movement) were recorded by the monitors. Of these, 16 
incidents, representing harassment of 62 individual seals, were 
attributed to construction activity or marine mammal monitoring; the 
remaining 3 incidents were unrelated to the project (e.g., seals 
flushing as a result of a passing boat in Elkhorn Slough) (Table 5). 
When Level B harassment occurred, it was always when seals were within 
300 meters of the disturbance source; most were when distances were 100 
meters or less (Fountain et al., 2019). In addition, not all seals 
located in the vicinity of the disturbance flushed or moved during each 
discrete incident; for example, in 9 incidents, less than one third of 
the seals present in the area flushed. Relative to the average number 
of seals observed per day during monitoring, approximately 2% were 
disturbed by construction or monitoring activities.

    Table 5--Phase I Harbor Seal Disturbance Data--Number of Seals Experiencing Level B Harassment (Movement,
                                Flushing) in Relation to Number of Seals Present
----------------------------------------------------------------------------------------------------------------
                                                                                                   Number seals
                                                                   Number seals    Number seals      in entire
                            Incident                                   taken        in vicinity     observation
                                                                                                       area
----------------------------------------------------------------------------------------------------------------
1...............................................................              12              16              17
2...............................................................              10              49              75
3...............................................................               2               2               3
4...............................................................               1               1               8
5...............................................................               2              12              31
6...............................................................               2              12              16
7...............................................................               2              12              16
8...............................................................               1              12              16
9...............................................................               3               3               3
10..............................................................               4               7               8
11..............................................................               2               5              36
12..............................................................               6              43             107
13..............................................................               2              17              26
14..............................................................               6              14              31
15..............................................................               3               3              54
16..............................................................               4               6               6
                                                                 -----------------------------------------------
    Total.......................................................              62             214             453
----------------------------------------------------------------------------------------------------------------
Notes:
(1) ``number seals taken'' = seals that moved or flushed.
(2) ``Number seals in vicinity'' = o those proximate to the disturbance site.

    Specific to the presence of pups during Phase I, Table 6 depicts 
the maximum number of pups observed during hourly counts by month. This 
metric conservatively represents the highest number of pups that could 
be disturbed by project-related activities (including by monitoring 
observers) at a given time.

[[Page 72317]]



       Table 6--Maximum Number of Pups Observed During Hourly Counts by Month During Phase I Construction
----------------------------------------------------------------------------------------------------------------
                         Month                                               Number of pups
----------------------------------------------------------------------------------------------------------------
2017:
    December..........................................                                                         5
2018:
    January...........................................                                                         6
    1February.........................................                                                         9
    March.............................................                                                         4
    April.............................................                                                         7
    May...............................................                                                        15
    June..............................................                                                         5
    July..............................................                                                         9
    August............................................                                                         9
----------------------------------------------------------------------------------------------------------------

    Table 7 summarizes all occasions where monitors observed seal pups 
reacting to Phase I project-related activities-- typically sound. All 
responses were observed within 100m of project-related activities. This 
metric conservatively represents the highest number of pups that could 
be disturbed by project-related activities, either a monitor or 
construction activities (typically sound), at a given time.

                                Table 7--Phase I Harbor Seal Pup Disturbance Data
----------------------------------------------------------------------------------------------------------------
                                                                                   Total number
             Date                  Reaction          Trigger       Total number    seals reacted    Number pups
                                                                   seals present        \1\           reacted
----------------------------------------------------------------------------------------------------------------
4/11/18......................  Flush...........  Monitor                      18               6               3
                                                  (Visual).
4/11/18......................  Flush...........  Construction                 12               2               1
                                                  (Sound).
4/11/18......................  Flush...........  Construction                 10               2               1
                                                  (Sound).
4/11/18......................  Flush...........  Construction                 10               2               1
                                                  (Sound).
4/12/18......................  Alert...........  Construction                 17               2               1
                                                  (Sound and
                                                  Visual).
5/01/18......................  Flush...........  Monitor                       3               3               1
                                                  (Visual).
----------------------------------------------------------------------------------------------------------------
\1\ Includes all seals (adults, pups) that reacted to project-related disturbance.

    No takes by Level A harassment, serious injury, or mortality are 
expected from the disturbance associated with the construction 
activities. It is unlikely a stampede (a potentially dangerous 
occurrence in which large numbers of animals succumb to mass panic and 
rush away from a stimulus) would occur or abandonment of pups. The 
primary spots used for nursing and resting for mother/pup pairs has 
been the entrance to Parson Slough, which is ~610 m east of Minhoto-
Hester restoration area and will not be affected by construction 
activities (per comm Harvey 2019). 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, UPPR, and other stimuli 
from human presence. The number of harbor seals disturbed would 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.

Take Calculation and Estimates

    Here we describe how the information provided above is brought 
together to produce a quantitative take estimate.
    Incidental take is calculated using the estimated number of seals 
that will be present in project area during construction activities and 
the anticipated percentage of those seals that will be taken based on 
previous monitoring. Expected marine mammal presence is determined by 
past observations--from Phase I of the restoration project and 16 
months of data from the Reserve Otter Monitoring Project--and general 
abundance during the construction window. Daily take estimates are 
based on the average percentage of Level B disturbance observed during 
Phase 1 construction (percent of seals taken) in the following 
equation:
[GRAPHIC] [TIFF OMITTED] TN31DE19.007

The percentage was then rounded up to 2% and used to calculate the 
daily take estimate. Upon review of CDFW's take calculation and 
estimate, NMFS decided to calculate the daily take estimate using the 
maximum number of seals observed in a day (417) at the seven locations, 
proximate to the Phase II restoration areas, over a 16-month period by 
the Reserve Otter Monitoring Project:

Daily Take Estimate = Average % of Seals Taken * Maximum Seals Observed 
in a Day

The proposed authorized take was determined by multiplying the daily 
take estimate (8.34) by the number of construction days (180), for 
Phase II of the restoration project. Using this approach, a summary of 
estimated takes of harbor seals incidental the project activities are 
provided in Table 8. Estimates include Level B harassment as a result 
of exposure to noise and visual disturbance during construction 
activities.

[[Page 72318]]



                            Table 8--Calculated Take and Percentage of Stock Exposed
----------------------------------------------------------------------------------------------------------------
                                                           Proposed authorized take
                  Species                   -----------------------------------------------------  % population
                                                           Level B                    Level A           \4\
----------------------------------------------------------------------------------------------------------------
A. Pacific Harbor Seal.....................  417 \1\ max seals/day(2% \2\)(180               N/A               5
                                              days \3\) = 1502.
----------------------------------------------------------------------------------------------------------------
\1\ Maximum number of seals observed/day between January 2018 and April 2019 by Reserve Otter Monitoring
  Project.
\2\ % Take from Phase I.
\3\ Number of construction days.
\4\ Data from U.S. Pacific Marine Mammal Stock Assessments: 2015 (Carretta et al., 2015).

    All estimates proposed by the applicant and accepted by NMFS, are 
considered conservative. Construction activities will occur in 
sections, and some sections (e.g. S1-S4) are further away from seal 
haul outs (approximately 100 m and greater). Noise from construction 
activities in more southern sections may cause fewer disturbances to 
seals. Not all seals that previously used the haul outs within the 
footprint of the construction will use the haul outs just outside the 
project. Some seals may seek alternative haul out habitat in other 
parts of Elkhorn Slough.

Proposed 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 (latter not applicable for this action). NMFS 
regulations require applicants for incidental take authorizations to 
include information about the availability and feasibility (economic 
and technological) of equipment, methods, and manner of conducting such 
activity or other means of effecting the least practicable adverse 
impact upon the affected species or stocks and their habitat (50 CFR 
216.104(a)(11)).
    In evaluating how mitigation may or may not be appropriate to 
ensure the least practicable adverse impact on species or stocks and 
their habitat, as well as subsistence uses where applicable, we 
carefully consider two primary factors:
    (1) The manner in which, and the degree to which, the successful 
implementation of the measure(s) is expected to reduce impacts to 
marine mammals, marine mammal species or stocks, and their habitat. 
This considers the nature of the potential adverse impact being 
mitigated (likelihood, scope, range). It further considers the 
likelihood that the measure will be effective if implemented 
(probability of accomplishing the mitigating result if implemented as 
planned), the likelihood of effective implementation (probability 
implemented as planned), and;
    (2) the practicability of the measures for applicant 
implementation, which may consider such things as cost, impact on 
operations, and, in the case of a military readiness activity, 
personnel safety, practicality of implementation, and impact on the 
effectiveness of the military readiness activity.
    The following mitigation measures are planned in the IHA:

Timing Restrictions

    All work will be conducted during daylight hours when visual 
monitoring of marine mammals can be implemented. If poor environmental 
conditions restrict full visibility of the shutdown zone, construction 
activities would be delayed. No in-water work will be conducted at 
night.

Shutdown Zone for In-Water Heavy Machinery Work

    For in-water, heavy machinery work, if a marine mammal comes within 
10 m of such operations, operations shall cease and vessels shall 
reduce speed to the minimum level required to maintain steerage and 
safe working conditions.

Construction Activities

    A NOAA Fisheries and USFWS-approved biologist shall conduct 
mandatory biological resources awareness training for construction 
personnel. The awareness training shall be provided to all construction 
personnel to brief them on the need to avoid effects on 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.
    A NOAA Fisheries and USFWS approved biological monitor will monitor 
for marine mammal disturbance. Monitoring will occur at all times when 
work is occurring, (1) in water or (2); within 100 m of tidal waters. 
Biological monitoring will begin 0.5-hour before work begins and will 
continue until 0.5-hour after work is completed each day. The 
biological monitor will have the authority to stop project activities 
if marine mammals approach or enter the exclusion zone and/or at any 
time for the safety of any marine mammals. Work will commence only with 
approval of the biological monitor to ensure that no marine mammals are 
present in the exclusion zone.
    To reduce the risk of potentially startling marine mammals with a 
sudden intensive sound, the construction contractor would begin 
construction activities gradually each day by moving around the project 
area and starting tractor one at a time.
    Fuel storage and all fueling and equipment maintenance activities 
will be conducted at least 100 feet from subtidal and intertidal 
habitat.

Pupping Season

    While CADFW expects the majority of pupping to take place at 
Parson's Slough, outside of the project area, pupping location is left 
to the mother's preference. Thus, in the event a pup comes within 20 m 
of where heavy machinery is operating, construction activities in that 
area will be delayed until the pup has left the area. In the event that 
a pup remains within those 20 m, NMFS will be consulted to determine 
the appropriate course of action.
    If a pup less than one week old comes within 20 meters of where 
heavy machinery is working, construction activities in that area would 
be delayed until the pup has left the area. In the event that a pup 
less than one week old remains within those 20 meters, NOAA Fisheries 
would be consulted to determine the appropriate course of action.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means 
effecting the least practicable impact on the affected species or 
stocks and their habitat, paying particular attention to rookeries,

[[Page 72319]]

mating grounds, and areas of similar significance.

Proposed 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 
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 
proposed action area. Effective reporting is critical both to 
compliance as well as ensuring that the most value is obtained from the 
required monitoring.
    Monitoring and reporting requirements prescribed by NMFS should 
contribute to improved understanding of one or more of the following:
     Occurrence of marine mammal species or stocks in the area 
in which take is anticipated (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 marine mammal responses (behavioral or 
physiological) to acoustic stressors (acute, chronic, or cumulative), 
other stressors, or cumulative impacts from multiple stressors.
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of individual marine mammals; or (2) 
populations, species, or stocks.
     Effects on marine mammal habitat (e.g., marine mammal prey 
species, acoustic habitat, or other important physical components of 
marine mammal habitat).
     Mitigation and monitoring effectiveness.

Pre-Activity Monitoring

    Pre and post construction daily censuses--A census of marine 
mammals in the project area and the area surrounding the project will 
be conducted 30 minutes prior to the beginning of construction on 
monitoring days, and again 30 minutes after the completion of 
construction activities. The following data will be collected:

 Environmental conditions (weather condition, tidal conditions, 
visibility, cloud cover, air temperature and wind speed), recorded 
during pre- and post-construction daily census counts
 Numbers of each species spotted
 Location of each species spotted
 Status (in water or hauled out)
 Behavior

    Hourly counts--Conduct hourly counts of animals hauled out and in 
the water.
    Data collected will include:

 Numbers of each species
 Location, including zone and whether hauled out or in the 
water
 Time
 Tidal conditions
 Primary construction activities occurring during the past hour
 Number of mom/pup pairs and neonates observed
 Notable behaviors, including foraging, grooming, resting, 
aggression, mating activity, and others
 Tag color and tag location (and tag number if possible)--for 
sea otters, note right or left flipper and location between digits 
(digits 1 and 2 are inside; digits 4 and 5 are outside)

    Notes may include any of the following information to the extent it 
is feasible to record:

 Age-class
 Sex
 Unusual activity or signs of stress
 Any other information worth noting

Construction related reactions

    Record reaction observed in relation to construction activities 
including:

 Time of reaction
 Concurrent construction activity
 Location of animal during initial reaction and distance from 
the noted disturbance
 Activity before and after disturbance
 Status (in water or hauled out) before and after disturbance

                                             Table 9--Code Reactions
----------------------------------------------------------------------------------------------------------------
                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'.
----------------------------------------------------------------------------------------------------------------

Steps for Shutting Down and Resuming Construction
1. Alert construction foreman of animal using the red flag and handheld 
radio (use 1 blow from air horn if needed)
2. Record the construction activity and the time of shutdown
3. Record the reaction and location of the animal
4. Give clearance signal (green flag) and handheld radio for 
construction activities when animal is seen outside of 10-meter zone 
and traveling away from the construction area, or when the animal is 
not spotted for 15 minutes
5. Record the time construction resumes

Negligible Impact Analysis and Determination

    NMFS has defined negligible impact 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 (50 CFR 216.103). 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 takes alone is not enough 
information on which to base an impact determination. In addition to

[[Page 72320]]

considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers 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 effects on habitat, and the likely effectiveness 
of the mitigation. We also assess the number, intensity, and context of 
estimated takes by evaluating this information relative to population 
status. Consistent with the 1989 preamble for NMFS's implementing 
regulations (54 FR 40338; September 29, 1989), the impacts from other 
past and ongoing anthropogenic activities are incorporated into this 
analysis via their impacts on the environmental baseline (e.g., as 
reflected in the regulatory status of the species, population size and 
growth rate where known, ongoing sources of human-caused mortality, or 
ambient noise levels).
    Construction activities associated with this project have the 
potential to disturb or displace marine mammals. No serious injury or 
mortality is expected, and with mitigation we expect to avoid any 
potential for Level A harassment as a result of the Seal Bend and 
Minhoto-Hester Marsh construction activities. 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 at 
these levels, though they 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 stressors. The activities are not expected to result in the 
alteration of reproductive or feeding behaviors. 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 and as described above, the following factors primarily 
support our preliminary determination that the impacts resulting from 
this activity are not expected to adversely affect the species or stock 
through effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized.
     No Level A harassment is anticipated or authorized.
     Anticipated incidents of Level B harassment consist of, at 
worst, temporary modifications in behavior.
     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. 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, 
preferred in recent years for pupping (per comm Harvey 2019), that will 
be available for seals while some of the haul outs are inaccessible.
     Restoration of the marsh habitat will have no adverse 
effect on marine mammal habitat, but possibly a long-term beneficial 
effect.
     Presumed efficacy of the mitigation measures in reducing 
the effects of the specified activity to the level of least practicable 
impact
     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 a relatively small 
portion of the entire California stock (five percent). 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 proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Sections 101(a)(5)(A) and (D) of

[[Page 72321]]

the MMPA for specified activities other than military readiness 
activities. The MMPA does not define small numbers and so, in practice, 
where estimated numbers are available, NMFS compares the number of 
individuals taken to the most appropriate estimation of abundance of 
the relevant species or stock in our determination of whether an 
authorization is limited to small numbers of marine mammals. 
Additionally, other qualitative factors may be considered in the 
analysis, such as the temporal or spatial scale of the activities.
    Here, the authorized take (if we conservatively assumed that each 
take occurred to a new animal, which is unlikely) comprises 
approximately five percent of the abundance of harbor seals. Therefore, 
based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stocks or species implicated by this action. Therefore, NMFS has 
preliminarily determined that the total taking of affected species or 
stocks would not have an unmitigable adverse impact on the availability 
of such species or stocks for taking for subsistence purposes.

Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 
U.S.C. 1531 et seq.) requires that each Federal agency insure that any 
action it authorizes, funds, or carries out is not likely to jeopardize 
the continued existence of any endangered or threatened species or 
result in the destruction or adverse modification of designated 
critical habitat. To ensure ESA compliance for the issuance of IHAs, 
NMFS consults internally whenever we propose to authorize take for 
endangered or threatened species.
    No incidental take of ESA-listed species is proposed for 
authorization or expected to result from this activity. Therefore, NMFS 
has determined that formal consultation under section 7 of the ESA is 
not required for this action.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
issue an IHA to CDFW for conducting Phase II of the Elkhorn Slough 
Tidal Marsh Restoration Project in Elkhorn Slough located in Monterey 
County, CA over 11 months, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated. A 
draft of the proposed IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act.

Request for Public Comments

    We request comment on our analyses, the proposed authorization, and 
any other aspect of this Notice of Proposed IHA for the proposed 
[action]. We also request at this time comment on the potential renewal 
of this proposed IHA as described in the paragraph below. Please 
include with your comments any supporting data or literature citations 
to help inform decisions on the request for this IHA or a subsequent 
Renewal.
    On a case-by-case basis, NMFS may issue a one-year IHA renewal with 
an additional 15 days for public comments when (1) another year of 
identical or nearly identical activities as described in the Specified 
Activities section of this notice is planned or (2) the activities as 
described in the Specified Activities section of this notice would not 
be completed by the time the IHA expires and a Renewal would allow for 
completion of the activities beyond that described in the Dates and 
Duration section of this notice, provided all of the following 
conditions are met:
     A request for renewal is received no later than 60 days 
prior to expiration of the current IHA.
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal are identical to the activities analyzed under the 
initial IHA, are a subset of the activities, or include changes so 
minor (e.g., reduction in pile size) that the changes do not affect the 
previous analyses, mitigation and monitoring requirements, or take 
estimates (with the exception of reducing the type or amount of take 
because only a subset of the initially analyzed activities remain to be 
completed under the Renewal).
    (2) A preliminary monitoring report showing the results of the 
required monitoring to date and an explanation showing that the 
monitoring results do not indicate impacts of a scale or nature not 
previously analyzed or authorized.
     Upon review of the request for Renewal, the status of the 
affected species or stocks, and any other pertinent information, NMFS 
determines that there are no more than minor changes in the activities, 
the mitigation and monitoring measures will remain the same and 
appropriate, and the findings in the initial IHA remain valid.

    Dated: December 23, 2019.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2019-28211 Filed 12-30-19; 8:45 am]
 BILLING CODE 3510-22-P