Takes of Marine Mammals Incidental To Specified Activities; Taking Marine Mammals Incidental to Elkhorn Slough Tidal Marsh Restoration Project, Phase III in Monterey County, California, 43204-43212 [2021-16858]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 86, Number 149 (Friday, August 6, 2021)]
[Notices]
[Pages 43204-43212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16858]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XB270]


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

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

ACTION: Notice; proposed issuance of an incidental harassment 
authorization; request for comments.

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SUMMARY: NMFS has received a request from the California Department of 
Fish and Wildlife (CDFW) for authorization to take marine mammals 
incidental to the Elkhorn slough Tidal Marsh Restoration Project (Phase 
III) in Monterey County, CA. which includes the excavation and movement 
of soil with heavy machinery for marsh restoration. 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-time, 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 
September 7, 2021.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service. Written comments should be submitted 
via email to [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, including all attachments, must 
not exceed a 25-megabyte file size. Attachments to 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://

[[Page 43205]]

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: Kim Corcoran, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application and supporting documents (including NMFS FR notices of the 
prior authorizations), 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.

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 IHA) 
with respect to potential impacts on the human environment.
    The current 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 renewal qualifies to be categorically 
excluded from further NEPA review just as the initial IHA did.
    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 June 14, 2021, NMFS received a request from CDFW for an IHA to 
take marine mammals incidental to the Elkhorn Slough Restoration 
Project, Phase III, at the Seal Bend Restoration Area in Monterey 
Country, CA. The application was deemed adequate and complete on July 
27, 2021. CDFW's request is for take of a small number of Pacific 
harbor seals (Phoca vitulina) 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 Phase I (82 FR 16800; 
April 6, 2017) and Phase II (85 FR 14640; March 13, 2020) of the 
Elkhorn Slough Restoration Project. Restoration work under the 2020 IHA 
at the Minhoto-Hester and Seal Bend restoration areas was expected to 
be completed within 180 days within the one-year timeframe of the IHA. 
However, on May 3, 2021 CDFW informed NMFS that the estimated 180 days 
of construction for both the Minhoto-Hester and Seal Bend Restoration 
Areas would not be enough to complete the project. This preliminary 
estimate did not adequately account for variable weather conditions 
experienced during construction (e.g., wet weather and soils required 
extensive reworking of fill), the amount of time to haul material from 
the borrow area to the fill location, or contractor availability which 
resulted in a smaller crew than initially expected. Therefore, only 118 
days of construction occurred under the initial IHA. To cover the 
remaining work at the Minhoto-Hester Restoration Area, CDFW requested 
an IHA Renewal. NMFS published a notice of a proposed IHA Renewal and 
request for comments in the Federal Register on June 8, 2021 to 
complete the remaining 62 days of work (86 FR 30412; June 8, 2021) 
(Hereafter referred to as the 2021 Renewal). We subsequently published 
the final notice of our issuance of the IHA Renewal on July 7, 2021 (86 
FR 35751).
    As work at the Seal Bend Restoration Area had not begun and could 
not be covered by the IHA Renewal, CDFW requested that a new IHA be 
issued that would be valid for one year from the date of issuance. 
Under this proposed IHA, CDFW would conduct 240 days of work to restore 
28.6 acres (11.57 hectares) of tidal marsh habitat in the Seal Bend 
Restoration Area. The project would include the use of haul trucks and 
heavy earthmoving equipment to transport dry material out onto the 
marsh. The proposed project activities will not differ from the 2020 
IHA other than the number of construction days, and the means of 
calculating take.

Description of the Proposed Activity

Overview

    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. In response to years of 
anthropogenic degradation (e.g., diking and marsh draining), the 
Elkhorn Slough Tidal Marsh Restoration Project (project) plans to 
restore approximately 122 acres (49.37 hectares) of tidal marsh across 
three phases, all of which are located in Monterey County, California 
(Figure 1). Phase I of the project, completed in 2018, restored 61 
acres (24.69 hectares) of tidal marsh within the Minhoto-Hester Marsh 
in Elkhorn Slough (Monterey, CA) (Figure 2) (82 FR 16800; April 06, 
2017) (Hereafter referred to as the 2017 IHA). Phase II of the project, 
planned for completion in September 2021, plans to restore 29.4 acres 
(11.90 hectares) of tidal marsh at the Minhoto-Hester Restoration Area 
adjacent to the Phase I Restoration Area (see Figure 2). As the 
remainder of the

[[Page 43206]]

work associated with the project has not been completed and could not 
be covered by the 2021 Renewal, CDFW requests that this proposed IHA 
cover take incidental to Phase III of the project, which will restore 
28.6 acres (11.57 hectares) at the Seal Bend Restoration Area shown in 
Figure 2. Similar to previous projects, Phase III will relocate soil 
from an upland area called ``the borrow'' through use of heavy earth 
moving equipment, within a 12 month 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). NMFS is proposing to authorize take, by Level B 
Harassment, of Pacfic harbor seals as a result of the specified 
activity. To support public review and comment on the IHA that NMFS is 
proposing to issue here, we refer to the documents related to the 
previously issued IHA and discuss any new or changed information here. 
The previous documents include the Federal Register notice of the 
issuance of the 2020 IHA (85 FR 14640; March 13, 2020), the Federal 
Register notice of the issuance of the 2021 IHA Renewal (86 FR 35751; 
July 7, 2021), and all associated references and documents. We also 
refer the reader to CDFW's previous and current applications and 
monitoring reports which can be found at https://www.fisheries.noaa.gov/node/23111.

Dates and Duration

    As previously mentioned, the Phase II IHA covered restoration work 
at both the Minhoto-Hester Restoration Area and the Seal Bend 
Restoration Area for 180 total days of construction but the work was 
not able to be completed for both locations within the timeframe and 
take estimate constraints of the 2020 IHA and 2021 Renewal IHA for the 
reasons discussed above. Therefore, CDFW is requesting this new 
authorization for 240 construction days to account for similar, 
anticipated construction constraints at the Seal Bend Restoration Area, 
such as likely wet weather, the distance between the borrow area and 
restoration site, and limited contractor availability. CDFW is prepared 
to start the work at Seal Bend as soon as they receive authorization, 
so this IHA will be valid for one year from the date of issuance.

Specific Geographic Region

    The project is located in the Elkhorn Slough estuary, about 90 
miles south of San Francisco and 20 miles north of Monterey in Monterey 
Country, California (Figure 1). The project sites are located on land 
owned and operated by CDFW 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 the Phase III project site 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.
    Phase III would restore the Seal Bend Restoration Area which 
includes about 28.6 acres (11.57 hectares) of historic farmland 
adjacent to Elkhorn Slough and west of the Phase I and II restoration 
areas (Figure 2). The proposed project area is low-lying area 
consisting of subsided pickleweed (Salicornia) marsh, intertidal 
mudflats, and tidal channels. Fill material for Seal Bend will be 
obtained from a 38 acre (15.38 hectare) upland borrow area south of the 
Minhoto-Hester (Phase II) Restoration Area (Figure 2). Once complete, 
the slopes of the borrow area would be graded to increase marsh area 
and create a gently sloping ecotone band along the edge of the Phase I 
and II sites.
BILLING CODE 3510-22-P

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[GRAPHIC] [TIFF OMITTED] TN06AU21.002


[[Page 43208]]


BILLING CODE 3510-22-C

Detailed Description of Specific Activity

    As previously described, the proposed project would restore 28.6 
acres (11.57 hectares) of tidal marsh habitat at the Seal Bend 
Restoration Area. As described in more detail in the 2020 IHA, project 
components to restore hydrologic function to the project area would 
include raising the subsided marsh plain, maintaining or re-excavating 
existing tidal channels, and restoring marsh plain, ecotone, and native 
grassland habitat within a borrow/upland buffer area.
    Up to 133,346 cubic yards (CY) (101950.33 cubic meters (CM)) of 
soil will be obtained from the upland borrow area to raise the subsided 
marsh plain to an average of 1.9 feet (0.58 m) above the current 
height. This target elevation would allow emergent wetland vegetation 
to naturally be reestablished. Sediment would be placed to a fill 
elevation slightly higher than the target marsh plain elevation to 
allow for settlement and consolidation of the underlying soils. After 
construction is complete, the project would rely primarily on natural 
vegetation recruitment in the restored marsh areas.
    An additional detailed description of the proposed restoration 
project is found in the proposed and issued 2020 IHA. The location and 
nature of the activities, including the types of equipment planned for 
use, are identical to those described in the previous notices. 
Differences between the 2020 IHA and the proposed 2021-2022 IHA occur 
in the number of days restoration work would occur, the method for 
calculating take, and visual monitoring requirements, all of which are 
discussed in detail below.

Description of Marine Mammals in the Area of Specified Activities

    A description of the marine mammals in the area of the activities 
is found in the 2020 IHA, which remains applicable to the proposed 
2021-2022 IHA as well. In addition, NMFS has reviewed recent 2020 Stock 
Assessment Reports, information on relevant Unusual Mortality Events, 
and recent scientific literature, and determined that no new 
information affects our original analysis of impacts under this 
proposed IHA.

Potential Effects of Specified Activities on Marine Mammals and Their 
Habitat

    A description of the potential effects of the specified activities 
on marine mammals and their habitat may be found in the documents 
supporting the 2020 IHA, which remains applicable to the issuance of 
the proposed 2021-2022 IHA. There is no new information on potential 
effects.

Estimated Take

    A detailed description of the previous methods and inputs used to 
estimate authorized take is found in the 2020 IHA. The total number of 
construction days and the method of estimating take have been modified 
from the 2020 IHA to reflect construction delays as discussed above and 
the monitoring data received under the 2020 IHA. The source levels and 
marine mammal occurrence and density remain unchanged from the 2020 IHA 
and detailed information regarding these figures can be found in the 
proposed and issued 2020 IHA.

Take Calculation and Estimates

    To repeat how take was calculated in the 2020 IHA, we used the 
total number of seals taken during Phase I construction (i.e., 62 
seals) divided by the sum of the daily average number of seals observed 
hourly during Phase I. That percentage (8.79 percent) was rounded to 9 
percent and multiplied by the sum of the highest daily count of seals 
observed by the Reserve Otter Monitoring Projects at all observation 
areas between January 2018 and April 2019 (i.e., 417). That number was 
multiplied by the total number of construction days to arrive at the 
total take estimate that was used.
    For the Phase III project, we have additional monitoring data that 
more accurately reflects the amount of take that occurs during this 
type of restoration activity. In particular we now have data that 
suggests the maximum number of seals taken per day within 300 m of 
construction activity has been 8, which occurred on September 8, 2020 
(Table 1). Therefore, we propose to use that maximum number of seals 
taken per day to estimate take using the following formula:

Total Take Estimate = Max # of seals taken per day * # of Construction 
Days

    The average total individual takes per day for Phase II was 1.33 
which is considerably lower than the proposed maximum number of seals 
taken per day (8) (Table 1). Therefore we believe this approach is 
adequately precautionary and reflects likely expected take. Using this 
approach, a summary of estimated takes of harbor seals incidental to 
the proposed project activities are provided in Table 2.

     Table 1--Phase II Harbor Seal Disturbance Data--Number of Seals
                     Experiencing Level B Harassment
------------------------------------------------------------------------
                                                               Total
               Date                     Distance (m)        individuals
                                                           harassed \1\
------------------------------------------------------------------------
9/2/2020..........................  300m................               0
9/8/2020..........................  150m................               0
9/8/2020..........................  150m................               0
9/9/2020..........................  60m.................               0
9/10/2020.........................  60m.................               0
9/15/2020.........................  60m.................               1
9/21/2020.........................  60m.................               0
9/21/2020.........................  60m.................               2
11/9/2020.........................  300m................               1
3/17/2021.........................  200m................               5
3/24/2021.........................  60m.................               1
3/24/2021.........................  60m.................               1
4/5/2021..........................  80m.................               2
4/5/2021..........................  60m.................               1
4/14/2021.........................  80m.................               2
9/2/2020..........................  60m.................               0
9/3/2020..........................  20m.................               1
9/8/2020..........................  80m.................               8
9/9/2020..........................  40m.................               0

[[Page 43209]]

 
9/16/2020.........................  100m................               1
9/22/2020.........................  40m.................               0
10/19/2020........................  40m.................               2
10/28/2020........................  100m................               0
11/5/2020.........................  60m.................               0
12/3/2020.........................  80m.................               1
12/16/2020........................  60m.................               7
5/4/2021..........................  80m.................               0
                                                         ---------------
    Total.........................  ....................              36
------------------------------------------------------------------------
\1\ ``Total Seals Taken'' = the number of seals that moved or flushed
  during the incident. Alert responses are not considered to be takes.


                      Table 2--Calculated and Proposed Take and Percentage of Stock Exposed
----------------------------------------------------------------------------------------------------------------
                                                 Authorized take
-----------------------------------------------------------------------------------------------------------------
                                                                                                    Percent of
                  Species                                  Level B                    Level A        stock \3\
----------------------------------------------------------------------------------------------------------------
Pacific Harbor Seal........................  8 max seals taken per day \1\ *(240               0             6.2
                                              days \2\) = 1920.
----------------------------------------------------------------------------------------------------------------
\1\ Maximum number of seals harassed/taken in one day during Phase II.
\2\ Number of construction days at the Seal Bend Restoration Area.
\3\ Data from U.S. Pacific Marine Mammal Stock Assessments: 2014 (Carretta et al., 2015) (Abundance = 30,968).

Proposed Mitigation, Monitoring and Reporting Measures

    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 the 
activity, and other means of effecting the least practicable impact on 
the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the 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 the 
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.

Description of Proposed Mitigation

    Some of the proposed mitigation measures are identical to those 
included in the Federal Register notification announcing the final 2020 
IHA and detailed descriptions of these requirements can be found in 
that document. However, a few requirements have been updated to reflect 
NMFS more recent construction requirements and those changes are 
discussed in detail below and proposed for this project:
    Visual Monitoring--CDFW must fulfill monitoring requirements as 
described below. Required monitoring must be conducted by dedicated, 
trained, NMFS-approved Protected Species Observer(s) (PSO(s)). CDFW 
must monitor the project area to the maximum extent possible based on 
the required number of PSOs, required monitoring locations, and 
environmental conditions.
     Level B Harassment Zone--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 Seal Bend Restoration Area (Phase 
III) identified in Figure 2, monitoring must occur every other day when 
work is occurring.
     When construction activities occur near the ``borrow'' 
area where marsh fill material is gathered, monitoring must occur every 
fifth day when work is occurring within 300 m from seal haulouts or, if 
outside this area, when work is occurring less than 200 m from the 
water. 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.

Description of 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

[[Page 43210]]

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); and
     Mitigation and monitoring effectiveness.
    Changes from the 2020 IHA include:
     5(g)(v)(10): Notes should include any of the following 
information to the extent it is feasible to record:
    [cir] Age-class;
    [cir] Sex;
    [cir] Unusual activity or signs of stress;
    [cir] Activity of seals observed within hour timeframe (e.g., 
resting, swimming, etc.) and approximate number of seals that have 
arrived or left since last hourly count; and
    [cir] Any other information worth noting;
     6(a): The Holder must submit its draft report(s) on all 
monitoring conducted under this IHA within 90 calendar days of the 
completion of monitoring or 60 calendar days prior to the requested 
issuance of any subsequent IHA for construction activity at the same 
location, whichever comes first. A final report must be prepared and 
submitted within 30 calendar days following receipt of any NMFS 
comments on the draft report. If no comments are received from NMFS 
within 30 calendar days of receipt of the draft report, the report 
shall be considered final.
    The rest of proposed monitoring and reporting measures are 
identical to those included in the FR Notice announcing the final 2020 
IHA and detailed descriptions of these requirements can be found in 
that document.

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 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 
construction activities for Phase III. 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, year round, habitat for harbor seals of the greater Elkhorn 
Slough. Behavioral 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 and, in some cases, newly restored haulout 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 previous 
phases and other similar activities, will likely be limited to 
reactions such as displacement from the area or disturbance during 
resting. The construction activities analyzed here, such as equipment 
used, construction approach, and turbidity management, are the same as 
those activities previously analyzed under the 2017 and 2020 IHAs. Both 
Phase I and Phase II of the project reported no injuries or mortality 
to marine mammals as a result of the construction activities, and no 
known long-term adverse consequences from behavioral harassment have 
been documented. 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 significant 
disruption of foraging behaviors. Many animals perform vital functions, 
such as feeding, resting, traveling, and socializing, on a diel cycle 
(i.e., 24 hour cycle), and 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 
for several years (including during pupping season and while females 
are pregnant), despite the presence of anthropogenic noise and 
activities such as vessel traffic, Union Pacific Railroad (UPRR) 
trains, and human voices from kayaking and recreational activities. 
Harbor seals have repeatedly hauled out to rest (inside and outside the 
project area) or

[[Page 43211]]

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 restored by project activities (Figure 2). 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 only 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 has shown to be increasing in population size and is considered 
stable (Caretta et al., 2015). Even repeated Level B Harassment of some 
small subset of the overall stock is unlikely to result in any 
significant decrease in viability for the affected individuals, and 
thus will not result in any adverse impacts 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, including 
higher species diversity, increase 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 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 not expected to result in the alteration of 
habitat important to these behaviors or substantially impact the 
behaviors themselves. There is alternative haulout habitat just outside 
the footprint of the construction area, along the main channel of 
Elkhorn Slough, and in Parson's Slough, often the preferred pupping 
grounds in recent years (per comm Jim Harvey 2019), that will be 
available for seals while some of the haulouts 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 previous phases of the project and 
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 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 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. When the predicted number of 
individuals to be taken is fewer than one third of the species or stock 
abundance, the take is considered to be of small numbers. Additionally, 
other qualitative factors may be considered in the analysis, such as 
the temporal or spatial scale of the activities.
    For the proposed Phase III of the Elkhorn Slough Tidal Marsh 
Restoration Project, the authorized take (if we conservatively assume 
that each take occurred to a new animal, which is unlikely) comprises 
approximately 6.2 percent of the abundance of Pacific harbor seals in 
the California Stock. Therefore, based on the analysis 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 stock.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine 
mammal stock 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.

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 in the Elkhorn 
Slough Reserve. 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 restoration activities at the Seal 
Bend Restoration Area in Elkhorn Slough (Monterey County, CA) for 12 
months from the date of issuance, 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 (included in both this document 
and the referenced documents supporting the prior IHAs), the proposed 
authorization, and any other aspect of this Notice of Proposed IHA for 
the proposed Elkhorn Slough Tidal Marsh Restoration Project, Phase III, 
in Monterey County, CA. We also request at this time comment on the 
potential for 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 our

[[Page 43212]]

final decision on the request for MMPA authorization.
    On a case-by-case basis, NMFS may issue a one-time, one-year 
Renewal IHA following notice to the public providing an additional 15 
days for public comments when (1) up to another year of identical or 
nearly identical, or nearly identical, activities as described in the 
Detailed Description of Specific Activity section of this notice is 
planned or (2) the activities as described in the Detailed Description 
of Specific Activity 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 the needed Renewal IHA effective date (recognizing that the 
Renewal IHA expiration date cannot extend beyond one year from 
expiration of the initial IHA);
     The request for renewal must include the following:
    (1) An explanation that the activities to be conducted under the 
requested Renewal IHA 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); 
and
    (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; and
     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: August 2, 2021.
Catherine Marzin,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2021-16858 Filed 8-5-21; 8:45 am]
BILLING CODE 3510-22-P