Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Elkhorn Slough Tidal Marsh Restoration Project, Phase II in California, 14640-14650 [2020-05165]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 50 (Friday, March 13, 2020)]
[Notices]
[Pages 14640-14650]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05165]



[[Page 14640]]

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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; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued an incidental harassment authorization (IHA) to 
California Department of Fish and Wildlife (CDFW) to incidentally 
harass, by Level B harassment only, marine mammals during construction 
activities associated with the second phase of the tidal marsh 
restoration project in Elkhorn Slough, California.

DATES: This Authorization is effective from June 1, 2020 through May 
31, 2021.

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 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.

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; i.e., using heavy equipment to restore 
58 acres of saltmarsh habitat. The application was deemed adequate and 
complete on November 4, 2019. CDFW'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. A proposed IHA was published on December 31, 2019 (84 FR 
72308).
    NMFS previously issued an IHA to CDFW for related work (Phase I of 
the Elkhorn Slough Tidal Marsh Restoration Project; 82 FR 16800; April 
6, 2017). 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 IHA will cover one year of a larger project for which CDFW 
obtained the prior IHA; they intend to request take authorization for 
subsequent phases of the project. The larger project involves restoring 
147 acres of vegetated tidal salt marsh, upland ecotone, and native 
grasslands in Monterey County in response to years of anthropogenic 
degradation (e.g., diking and marsh draining).

Description of Specified Activity

    Phase II plans to restore 58 acres of saltmarsh habitat in two 
areas, by using heavy equipment to relocate up to 276,000 cubic yards 
of soil from an upland area south of the Minhoto-Hester Restoration 
Area, within an 11 month work period. This includes 53-acres of 
subsided marsh within the Minhoto-Hester (sub-areas M4a-b, M5, and M6 
in Figure 1) and Seal Bend Restoration Areas (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 plan to raise 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. 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 .64 meter (2.1 feet), including 25 percent overfill.

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[GRAPHIC] [TIFF OMITTED] TN13MR20.000

    Construction sequencing would begin with water management and/or 
turbidity control measures constructed around the work areas prior to 
placing material on the marsh. Water control structures, such as 
temporary berms, would be utilized to isolate the fill placement area 
during the construction period. Existing berms would be used, where 
possible, and tidal channels in this area will be blocked to allow 
construction in non-tidal conditions. When sediment placement is 
completed, any temporary features, such as water management berms, 
would be removed; i.e., the berms would be lowered to the target marsh 
elevation, reintroducing tidal inundation. At the end of each stage of 
construction, 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.
    A detailed description of the planned Elkhorn Slough Tidal Marsh 
Restoration Project, Phase II is provided in the Federal Register 
notice for the proposed IHA (84 FR 72308; December 31, 2019). Since 
that time, no changes have been made to the planned construction work 
activities. Therefore, a detailed description is not provided here. 
Please refer to that Federal Register notice for the description of the 
specific activity.
    Mitigation, monitoring, and reporting measures are described in 
detail later in this document (please see Mitigation and Monitoring and 
Reporting sections).

Comments and Responses

    A notice of NMFS's proposal to issue an IHA to CDFW was published 
in the Federal Register on December 31, 2019 (84 FR 72308). That notice 
described, in detail, CDFW's activity, the marine mammal species that 
may be affected by the activity, and the anticipated effects on marine 
mammals. During the 30-day public comment period, NMFS received a 
comment letter from the Marine Mammal Commission (Commission). For full 
detail of the Commission's recommendations and supporting rationale, 
please see the letter (available online at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-tidal-marsh-restoration-project-elkhorn-slough-phase-ii-2020).
    Comment 1: The Commission described concerns with the estimated 
take rationale and recommends that NMFS authorize up to 417 harbor 
seals being taken on up to 180 days of proposed activities.
    Response: We agree there were problems with the estimated take 
determination in the proposed IHA notice. CDFW subsequently provided 
the raw monitoring data from Phase I. NMFS learned there was a 
misunderstanding of terms and inadequate information to provide a full 
data set for Table 5 from the Proposed IHA. From the raw data we 
determined harbor seals could potentially be taken up to a distance of 
300 m from construction activity. The phase I data observations were 
recorded as within different habitat grids and without exact distance 
from the construction activity. NMFS determined that the observation 
data from the grids within the Minhoto area provide the best estimate 
of harbor seals present within 300 m of Phase I's activities. The data 
gathered for Phase I and used in the proposed IHA included animals from 
a much farther distance away that were not really available to be 
taken. Therefore, NMFS used the observation data from Phase I's Minhoto 
area to calculate the abundance and fraction of animals potentially 
exposed to Level B harassment. We then calculated the percent take of 
seals from Phase I activities using these data (8.79 percent) rather 
than using the data from all sites (2 percent), as was done in the 
Proposed IHA. The estimated take increased accordingly. Please refer to 
the Estimated Take section below for more details.
    Comment 2: The Commission recommended that NMFS: (1) Specify

[[Page 14642]]

that all construction activities would be required to be conducted 
during daylight hours only and remove any references to in-water 
activities; (2) require that, if poor environmental conditions restrict 
the full visibility of the shut-down zone, construction activities be 
delayed; (3) require that, if a pup less than one week of age comes 
within 20 m of heavy equipment, activities be delayed and remove any 
references to only a pup; (4) include the relevant reporting measures 
for injured and dead marine mammals; (5) include the specific data that 
CDFW would be required to collect before, during, and after each day's 
activities and require that all such data and the Protected Species 
Observer (PSO) sightings datasheets be included in CDFW's monitoring 
report; and (6) include NMFS's current definitions of Level 1, 2, and 3 
responses.
    Response: NMFS concurs with these recommendations and changed the 
final authorization to reflect these changes.
    Comment 3: The Commission recommended that NMFS: (1) Require that 
CDFW delay or cease activities, if the number of takes that have been 
authorized is met or if a species for which takes were not granted is 
observed in the project area and (2) ensure that the CDFW keeps a 
running tally of the total takes to ensure that the number of 
authorized takes are not exceeded.
    Response: NMFS agrees that CDFW must ensure they do not exceed 
authorized takes. As is typical in such authorizations, we have 
included a requirement in the IHA that ``activities must cease if a 
marine mammal species for which take was not authorized, or a species 
for which authorization was granted but the authorized number of takes 
have been met, is observed by PSOs approaching or within the Level B 
harassment zone. Activities must not resume until the animal is 
confirmed to have left the area.'' However, NMFS is not responsible for 
ensuring that CDFW does not operate in violation of an issued IHA.
    Comment 4: The Commission recommends that NMFS require CDFW to use 
at least two PSOs to monitor the restoration areas, with at least one 
PSO at Seal Bend and one at Minhoto-Hester Marsh, if construction 
activities occur simultaneously. CDFW also should be cognizant of 
documenting disturbance of harbor seals hauled out on the tidal flats 
across the main channel from where the construction activities would 
occur.
    Response: We agree that all Level B harassment zones must be 
monitored and that may require two PSOs if work is occurring 
simultaneously at both sites. We have added the following text to the 
IHA to clarify this requirement: ``If multiple construction activities 
occur simultaneously, enough PSOs must be on duty to monitor all Level 
B Harassment zones.''
    Comment 5: The Commission reiterates programmatic recommendations 
regarding NMFS' potential use of the renewal mechanism for one-year 
IHAs; that NMFS refrain from issuing renewals for any authorization and 
instead use its abbreviated Federal Register notice process.
    Response: NMFS disagrees with the Commission's recommendations, as 
stated in our previous comment responses relating to other actions, 
which we incorporate herein by reference.
    Deleted comments.

Changes From the Proposed IHA to Final IHA

    Corrections have been made to the estimated take determination 
process and take table as discussed in the response to comment 1 above 
(see also Estimated Take section and Table 7 for more details).
    Upon reviewing the raw data of the required monitoring during Phase 
I, the Level B harassment zone for Phase II has been increased from 100 
m to 300 m from construction activities to align with the distance at 
which take occurred during phase I. The Level B harassment zone is 
defined as the area within 300 m of where construction activities 
occur. Monitoring is now required when construction activities occur 
either, (1) in water or (2); within the boundaries of the two tidal 
restoration areas, Minhoto-Hester and Seal Bend, identified in Figure 
1. Monitoring must occur every other day when work is occurring, rather 
than every day of construction activities within 100 m of tidal waters. 
Monitoring must occur every fifth day when work is occurring near the 
``borrow'' areas, where marsh fill material is gathered, unless the 
borrow area is more than 300 m from any area where marine mammals have 
been observed.
    To accommodate for the reduction of monitoring, the monitoring 
report must include an extrapolation of the estimated takes by Level B 
harassment based on the number of observed disturbances within the 
Level B harassment zone and the percentage of time the Level B 
harassment zone was not monitored; i.e., 50 percent of time for the two 
restoration areas and 80 percent of the time for the borrow and other 
areas.
    The Pinniped Behavioral Disturbance Code Reactions (Table 8) have 
been updated to reflect NMFS's current language. The Mitigation and 
Monitoring and Reporting sections were updated to accurately coincide 
with the standard conditions in the final IHA.

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 1 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 the Endangered 
Species Act (ESA) and potential biological removal (PBR), where known. 
For taxonomy, we follow Committee on Taxonomy (2019). 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 (e.g., Carretta et al. 2019). All values 
presented in Table 1 are the most recent available at the time of 
publication and are available in the 2018 SARs (Carretta

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et al., 2019) and draft 2019 SARs (available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports).

                                                         Table 1--Harbor Seal Status Information
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                                                                                         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\
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                                                             Family Phocidae (earless seals)
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Pacific Harbor Seal.................  Phoca vitulina           California.............  -;N                 30,968 seals (CV =          1,641         43
                                       richardii.                                                            0.157, Nmin = 27,348,
                                                                                                             2012).
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\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR 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.

    A detailed description of the of the species likely to be affected 
by Phase II of the Elkhorn Slough Tidal Marsh Restoration project, 
including brief introductions to the species and relevant stocks, as 
well as available information regarding population trends and threats, 
and information regarding local occurrence, were provided in the 
Federal Register notice for the proposed IHA (84 FR 72308; December 31, 
2019); since that time, we are not aware of any changes in the status 
of these species and stocks; therefore, detailed descriptions are not 
provided here. Please refer to that Federal Register notice for these 
descriptions. Please also refer to NMFS' website (https://www.fisheries.noaa.gov/find-species) for generalized species accounts.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    The main impact to marine mammal habitat associated with the CDFW's 
restoration project is the temporary exclusion from the accustomed 
haulout areas. During the restoration, the inability of seals to use 
suitable habitat within the footprint of the construction area will 
temporarily remove less than two percent of the potential haulout areas 
in the Slough (see Figure 4-4 of the application). Although the action 
will permanently alter habitat within the footprint of the construction 
area, harbor seals haul out in many locations throughout the estuary, 
and the activities are not expected to have any habitat-related effects 
that could cause significant or long-term consequences for individual 
harbor seals or their population.
    CDFW's 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. The Federal Register notice of the proposed IHA (84 FR 
72308; December 31, 2019) included a discussion of the effects of 
anthropogenic noise and visual disturbance on marine mammals and their 
habitat. That information and analysis is incorporated by reference 
into this final IHA determination and is not repeated here; please 
refer to the Federal Register notice (84 FR 72308; December 31, 2019) 
for that information.

Estimated Take

    This section provides an estimate of the number of incidental takes 
authorized 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 will 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 authorized.
    As described previously, no mortality or serious injury is 
anticipated or 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 authorized 
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.,

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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) threshold 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 or 
authorized.

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 Elkhorn Slough National Estuarine Research 
Reserve (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 (see 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 NMFS for marine mammal monitoring.
    Figure 5 (from the application) and Table 2 below, summarizes the 
maximum number of seals observed by location on the highest day of 
counts via monitoring on a single day of monitoring, June 19, 2018. In 
addition, the maximum and average number of seals observed during 
hourly counts 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 also presented. 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 population estimates by McCarthy (2010), who 
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 (see Figure 5 in the application).

                         Table 2--Harbor Seal Counts by Reserve Otter Monitoring Project
----------------------------------------------------------------------------------------------------------------
                                                                                          Hourly counts 3
                           Location 1                              Highest daily -------------------------------
                                                                      count 2         Maximum         Average
----------------------------------------------------------------------------------------------------------------
Harbor..........................................................              88  ..............  ..............
Wildlife........................................................              59             106              41
Seal Bend.......................................................              56              86              24
Moonglow........................................................               0              87              16
Hester..........................................................               0              33               5
Main Channel....................................................              93             100              30
Yampah..........................................................               1              81              18
Avila...........................................................             120             122              32
                                                                 -----------------------------------------------
    Total.......................................................             417             615             166
----------------------------------------------------------------------------------------------------------------
1 See Figure 4 (from application) for location of 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 each location from
  monitoring dates between January 2018 and April 2019 by Reserve Otter Monitoring Project.

    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). When Level B 
harassment occurred, it was always when seals were within a range of 
500 meters of the disturbance source; the majority of reactions were 
when

[[Page 14645]]

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.
    Regarding the presence of pups during Phase I, Table 3 depicts the 
maximum number of pups observed during hourly counts by month. This 
metric conservatively represents the highest number of pups that could 
have been disturbed by project-related activities (including by 
monitoring observers) at a given time. Table 4 summarizes all occasions 
where monitors observed seal pups reacting to Phase I project-related 
activities-- typically sound. All responses were observed at a 100m 
distance from project-related activities; caused by either a monitor or 
construction activities.

 Table 3--Maximum Number of Pups Observed During Hourly Counts by Month
                       During Phase I Construction
------------------------------------------------------------------------
                          Month                           Number of pups
------------------------------------------------------------------------
2017: December..........................................               5
2018:
  January...............................................               6
  February..............................................               9
  March.................................................               4
  April.................................................               7
  May...................................................              15
  June..................................................               5
  July..................................................               9
  August................................................               9
------------------------------------------------------------------------


                                Table 4--Phase I Harbor Seal Pup Disturbance Data
----------------------------------------------------------------------------------------------------------------
                                                                   Total number    Total number
             Date                  Reaction          Trigger         of seals      seals reacted    Number pups
                                                                      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, or authorized, 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 nor the 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 (personal communication, J 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, the Union Pacific Railroad (UPRR), 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 haulout site to feed, and they are also not 
present when the tide is high and the haulout area 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 
monitoring for Phase I. As described above, using the observation data 
from Minhoto rather than that of all collection sites provides the best 
estimate of seals within the 300 m potential effect area of Phase I's 
activities. The average percentage of seals taken in a day is 
represented in the following equation:

[GRAPHIC] [TIFF OMITTED] TN13MR20.001

The percentage calculated (8.79 percent) was then rounded up to 9 
percent and used to calculate the daily take estimate. Daily take 
estimates are based on the average percentage of Level B disturbance 
observed during Phase 1 construction (percent of seals taken) 
multiplied by the expected number of animals in the project area on a 
daily basis. Upon review of CDFW's prior monitoring data, NMFS decided 
to assume the maximum number of seals observed in a single day (417) at 
the seven monitoring locations conservatively reflects the maximum 
possible number of seal that could be exposed to disturbance daily. 
Therefore, The daily take estimate is then the product of the average 
percentage of seals taken in a day (9 percent) and the number of seals 
that could be exposed to disturbance daily (417). Thus the daily take 
estimate is 37.53.
    The total authorized take was determined by multiplying the daily 
take estimate (37.53) by the number of construction days (180) for 
Phase II of the restoration project and rounding (Table 5).

[[Page 14646]]



                            Table 5--Calculated Take and Percentage of Stock Exposed
----------------------------------------------------------------------------------------------------------------
                                                               Authorized take
                  Species                   ----------------------------------------------------- % population 4
                                                           Level B                    Level A
----------------------------------------------------------------------------------------------------------------
Pacific Harbor Seal........................  417 1 max seals/day (9% 2) (180                   0            1.3%
                                              days 3) = 6755.
----------------------------------------------------------------------------------------------------------------
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 are considered conservative. Construction activities 
will occur in sections, and some sections (e.g. S1-S4) are further away 
from seal haulouts (approximately 100 m and greater). Noise from 
construction activities in more southern sections may thus cause fewer 
disturbances to seals. There are unlikely to be 417 animals in the 
project area on any given day. Not all seals that previously used the 
haulouts within the footprint of the construction will use the haulouts 
just outside the project. Some seals may seek alternative haul out 
habitat in other parts of Elkhorn Slough.

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 detailed in the IHA:

Timing Restrictions

    All work must be conducted during daylight hours when visual 
monitoring of marine mammals can be implemented. If environmental 
conditions deteriorate such that marine mammals within the entire 
shutdown zone would not be visible (e.g., fog, heavy rain), 
construction must be delayed until the PSO is confident marine mammals 
within the shutdown zone could be detected.

Visual Monitoring

    Required monitoring must be conducted by dedicated, trained, NMFS-
approved PSO(s). PSOs shall establish a Level B harassment zone within 
300 m of all construction activities. When construction activities 
occur either, (1) in water or (2); within the boundaries of the two 
tidal restoration areas, Minhoto-Hester and Seal Bend identified in 
Figure 1, monitoring must occur every other day when work is occurring.
    When construction activities occur near the ``borrow'' areas where 
marsh fill material is gathered, monitoring must occur every fifth day 
when work is occurring, unless the borrow area is more than 300 m from 
any area where marine mammals have been observed. Occurrence of marine 
mammals within the Level B harassment zone must be communicated to the 
construction lead to prepare for the potential shutdown when required.

Pre-Construction Clearance and Ramp-up

    A 30-minute pre-clearance observation period must occur prior to 
the start of ramp-up and construction activities. CDFW must adhere to 
the following pre-clearance and ramp-up requirements: (i) Construction 
activities must not be initiated if any marine mammal is within 10 m of 
planned operations. If a marine mammal is observed within 10 m of 
planned operations during the 30-minute pre-clearance period, ramp-up 
must not begin until the animal(s) has been observed exiting the zones 
or until an additional time period has elapsed with no further 
sightings (15 minutes for small odontocetes and pinnipeds and 30 
minutes for all other species), (ii) The construction contractor must 
begin construction activities gradually each day (e.g., ramp up by 
moving around the project area and starting equipment sequentially).

Shutdown Requirements

    For heavy machinery work, if a marine mammal comes within 10 m of 
such operations, operations must cease and vessels shall reduce speed 
to the minimum level required to maintain steerage and safe working 
conditions.
    Pupping Season--Construction activities may not be initiated: (1) 
Within 300 m of a mom/pup pair that is hauled out, or (2) within 100 m 
of a mom/pup pair in the water. If there is a gap in construction 
activities of more than an hour or if construction moves to a different 
area, this initiation protocol must again be implemented. During site 
containment activities that are underway, heavy machinery must not 
approach closer than 100 m of where mothers and pups are actively 
hauled out. If a pup less than one week old (neonate) comes within 20 m 
of where heavy machinery is working, construction activities in that 
area must be shutdown or delayed until the pup has left the area. In 
the event that a pup less than one week old remains within those 20 m, 
NMFS will be consulted to determine the appropriate course of action.

[[Page 14647]]

    Activities must cease if a marine mammal species for which take was 
not authorized, or a species for which authorization was granted but 
the authorized number of takes have been met, is observed by PSOs 
approaching or within the Level B harassment zone. Activities must not 
resume until the animal is confirmed to have left the area.

Construction Activities

    A NMFS approved PSO must conduct biological resources awareness 
training for construction personnel. The awareness training will be 
provided to brief construction personnel on identification of marine 
mammals (including neonates) and the need to avoid and minimize impacts 
to marine mammals. If new construction personnel are added to the 
project, the contractor shall ensure that the personnel receive the 
mandatory training before starting work.
    Construction activities must not be initiated if any marine mammal 
is within 10 m of planned operations. If a marine mammal is observed 
within 10 m of planned operations during the 30-minute pre-clearance 
period, ramp-up must not begin until the animal(s) has been observed 
exiting the zones or until an additional time period has elapsed with 
no further sightings (15 minutes for small odontocetes and pinnipeds 
and 30 minutes for all other species). Furthermore, the PSO will have 
the authority to stop project activities if marine mammals approach or 
enter the Level B Harassment Zone and/or at any time for the safety of 
any marine mammals. Work will commence only with approval of the PSO to 
ensure that no marine mammals are present in the Level B Harassment 
Zone.

Ramp Up

    To reduce the risk of potentially startling marine mammals with a 
sudden intensive sound, the construction contractor must begin 
construction activities gradually each day by moving around the project 
area and starting machinery one at a time.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has determined that the 
authorized mitigation measures provide the means effecting the least 
practicable impact on the affected species or stocks and their habitat, 
paying particular attention to rookeries, mating grounds, and areas of 
similar significance.

Monitoring and Reporting

    In order to issue an IHA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth requirements pertaining to the 
monitoring and reporting of such taking. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
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 
planned 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.

Protected Species Observers

    PSOs shall be used to detect, document, and minimize impacts to 
marine mammals, as well as, communicate with and instruct relevant 
construction crew with regard to the presence of marine mammals and 
mitigation requirements. Independent PSOs (i.e., not construction 
personnel) who have no other assigned tasks during monitoring periods 
must be used. Biological monitoring will begin 30 minutes before work 
begins and will continue until 30 minutes after work is completed each 
day.
    PSOs will be placed at the best vantage point(s) practicable to 
monitor for marine mammals within the Level B harassment zone, defined 
above. If multiple construction activities occur simultaneously, enough 
PSOs must be on duty to monitor all Level B Harassment zones.
    Qualifications for PSOs for visual monitoring include:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of harbor seals on land or in the water with 
ability to estimate target size and distance; use of binoculars may be 
necessary to correctly identify the target;
     Successfully attained a bachelor's degree from an 
accredited college or university with a major in one of the natural 
sciences and a minimum of 30 semester hours or equivalent in the 
biological sciences and at least one undergraduate course in math or 
statistics. The educational requirements may be waived if the PSO has 
acquired the relevant skills through alternate experience. Requests for 
such a waiver must include written justification. Alternate experience 
that may be considered includes, but is not limited to (1) secondary 
education and/or experience comparable to PSO duties; (2) previous work 
experience conducting academic, commercial, or government-sponsored 
marine mammal surveys; or (3) previous work experience as a PSO; the 
PSO should demonstrate good standing and consistently good performance 
of PSO duties;
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when construction activities 
were conducted; dates and times when construction activities were 
suspended to avoid potential incidental injury from construction sound 
or visual disturbance of marine mammals observed; and marine mammal 
behavior;

[[Page 14648]]

     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary;
    (a) PSOs must be provided with the equipment necessary to 
effectively monitor for marine mammals in order to record species, the 
distance from species' location to the construction activities, 
behaviors, and responses to construction activities;
    (b) The PSO must also conduct biological resources awareness 
training for construction personnel. The awareness training will be 
provided to brief construction personnel on identification of marine 
mammals (including neonates) and the need to avoid and minimize impacts 
to marine mammals. If new construction personnel are added to the 
project, the contractor shall ensure that the personnel receive the 
mandatory training before starting work.
    Monitoring requirements also include:

Pre-Activity Monitoring

    Pre and post construction daily censuses--A census of marine 
mammals in the project area and the area surrounding the project must 
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
 Numbers of each marine mammal species spotted
 Location of each species spotted, including distance from 
construction activity
 Status (in water or hauled out)
 Behavior

    Hourly Counts--Conduct hourly counts of animals hauled out and in 
the water within, at least, the Level B harassment zone.
    Data collected must include:
     Numbers of each species;
     Location, including whether inside the Level B harassment 
zone; whether hauled out or in the water; and distance from 
construction activities (10 m);
     Time;
     Tidal conditions;
     Time construction activities start and end;
     Primary construction activities occurring during the past 
hour ;
     Any noise or visual disturbance;
     Number of mom/pup pairs and neonates observed;
     Notable behaviors, including foraging, grooming, resting, 
aggression, mating activity, and others.
    Notes should 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:
     Tally of each reaction;
     Time of reaction;
     Concurrent construction activity;
     The assumed cause (whether related to construction 
activities or not) shall be noted;
     Disturbance must be recorded according to NMFS' three-
point pinniped disturbance scale (see Table 7);
     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 7--Pinniped Behavioral Disturbance 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.
2....................................  Movement...............  Movements in response to the source of
                                                                 disturbance, ranging from short withdrawals at
                                                                 least twice the animal's body length to longer
                                                                 retreats over the beach, or if already moving a
                                                                 change of direction of greater than 90 degrees.
3....................................  Flush..................  All retreats (flushes) to the water.
----------------------------------------------------------------------------------------------------------------

Reporting

    A draft marine mammal monitoring report would be submitted to NMFS 
within 90 days after the completion of pile driving and removal 
activities, or 60 days prior to a requested date of issuance of any 
future IHAs for projects at the same location, whichever comes first. 
The report must include full documentation of methods, results, and 
interpretation pertaining to all monitoring. It shall also include 
marine mammal observations pre-activity, during-activity, and post-
activity of construction, and shall also provide descriptions of any 
behavioral responses by marine mammals due to disturbance from 
construction activities and a complete description of total take 
estimate based on the number of marine mammals observed during the 
course of construction. The report must include an extrapolation of the 
estimated takes by Level B harassment based on the number of observed 
disturbances within the Level B harassment zone and the percentage of 
time the Level B harassment zone was not monitored; i.e., 50 percent of 
time for the two restoration areas and 80 percent of the time for the 
borrow and other areas. If comments are received from the NMFS Office 
of Protected Resources on the draft report, a final report shall be 
submitted to NMFS within 30 days thereafter following resolution of 
comments on the draft report from NMFS. If no comments are received 
from NMFS, the draft report will be considered to be the final report. 
This report must contain the informational elements described above.

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 
considering estimates of the number of marine mammals that might be 
``taken'' through harassment, NMFS considers other factors, such as the 
likely nature

[[Page 14649]]

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 or authorized, 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, 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. 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 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 (personal communication, J. 
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; and
     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. 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 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 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.

[[Page 14650]]

Additionally, other qualitative factors may be considered in the 
analysis, such as the temporal or spatial scale of the activities.
    Here, the authorized take comprises approximately 1.3 percent of 
the abundance of the California stock of harbor seals based on the 
estimate of 417 seals in the project area. The total authorized take 
(6755) reflects the number of disturbances potentially caused by the 
Phase II project activities, not the number of individual seals 
disturbed. An animal can only be counted as ``taken'' once a day; 
however, the PSO is not able to identify duplicate counts of the same 
animal. Animals taken on different days are also not likely to be 
different individuals as the population is resident. Thus, the total 
authorized take includes many duplicate counts of the same animal.
    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 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 
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.

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 evaluate our proposed action (i.e., the promulgation of 
regulations and subsequent issuance of incidental take authorization) 
and alternatives with respect to potential impacts on the human 
environment. This action is consistent with categories of activities 
identified in Categorical Exclusion B4 of the Companion Manual for NAO 
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 determined 
that the proposed action qualifies to be categorically excluded from 
further NEPA review.

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.

Authorization

    As a result of these determinations, NMFS has issued an IHA to CDFW 
for the potential harassment of small numbers of harbor seals 
incidental to the Phase II of the Elkhorn Slough Tidal Marsh 
Restoration Project in Elkhorn Slough located in Monterey County, CA, 
provided the previously mentioned mitigation, monitoring and reporting 
are completed.

    Dated: March 10, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-05165 Filed 3-12-20; 8:45 am]
 BILLING CODE 3510-22-P