Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Port San Luis Breakwater Repairs in Avila Beach, California, 23002-23006 [2023-07862]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 72 (Friday, April 14, 2023)]
[Notices]
[Pages 23002-23006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07862]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC907]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Port San Luis Breakwater Repairs in 
Avila Beach, California

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

ACTION: Notice; request for comments on proposed renewal incidental 
harassment authorization (IHA).

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SUMMARY: NMFS received a request from the U.S. Army Corps of Engineers 
(ACOE) for the renewal of their recently expired incidental harassment 
authorization (IHA) to take marine mammals incidental to Port San Luis 
breakwater repairs in Avila Beach, California. These activities consist 
of activities that are covered by the initial

[[Page 23003]]

authorization but were not completed prior to its expiration. Pursuant 
to the Marine Mammal Protection Act, prior to issuing the initial IHA, 
NMFS requested comments on both the proposed IHA and the potential for 
renewing the initial authorization if certain requirements were 
satisfied. The renewal requirements have been satisfied, and NMFS is 
now providing an additional 15-day comment period to allow for any 
additional comments on the proposed renewal not previously provided 
during the initial 30-day comment period.

DATES: Comments and information must be received no later than May 1, 
2023.

ADDRESSES: Comments should be addressed to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, and 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://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: Jenna Harlacher, Office of Protected 
Resources, NMFS, (301) 427-8401. Electronic copies of the original 
application, renewal request, and supporting documents (including NMFS 
Federal Register notices of the original proposed and final 
authorizations, and the previous IHA), 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 Marine Mammal Protection Act (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, an incidental harassment authorization is issued.
    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 here as ``mitigation 
measures''). Monitoring and reporting of such takings are also 
required. The meaning of key terms such as ``take,'' ``harassment,'' 
and ``negligible impact'' can be found in section 3 of the MMPA (16 
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
    NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) 
indicate that IHAs may be renewed for additional periods of time not to 
exceed 1 year for each reauthorization. In the notice of proposed IHA 
for the initial authorization, NMFS described the circumstances under 
which we would consider issuing a renewal for this activity, and 
requested public comment on a potential renewal under those 
circumstances. Specifically, on a case-by-case basis, NMFS may issue a 
one-time 1-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, activities as described in the Detailed 
Description of Specified Activities section of the initial IHA issuance 
notice is planned or (2) the activities as described in the Description 
of the Specified Activities and Anticipated Impacts section of the 
initial IHA issuance notice would not be completed by the time the 
initial IHA expires and a renewal would allow for completion of the 
activities beyond that described in the DATES section of the notice of 
issuance of the initial IHA, provided all of the following conditions 
are met:
    1. 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 1 year from expiration of the 
initial IHA).
    2. The request for renewal must include the following:
     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).
     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.
    3. 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.
    An additional public comment period of 15 days (for a total of 45 
days), with direct notice by email, phone, or postal service to 
commenters on the initial IHA, is provided to allow for any additional 
comments on the proposed renewal. A description of the renewal process 
may be found on our website at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals. Any 
comments received on the potential renewal, along with relevant 
comments on the initial IHA, have been considered in the development of 
this proposed IHA renewal, and a summary of agency responses to 
applicable comments is included in this notice. NMFS will consider any 
additional public comments prior to making any final decision on the 
issuance of the requested renewal, and agency responses will be 
summarized in the final notice of our decision.

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

[[Page 23004]]

proposed action (i.e., the issuance of an IHA renewal) with respect to 
potential impacts on the human environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (incidental take 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 determined that the issuance of the 
initial IHA qualified to be categorically excluded from further NEPA 
review. NMFS has preliminarily determined that the application of this 
categorical exclusion remains appropriate for this renewal IHA.

History of Request

    On April 27, 2021, NMFS issued an IHA to the ACOE to take marine 
mammals incidental to Port San Luis breakwater repairs in Avila Beach, 
California (86 FR 22151, April 27, 2021), effective from April 1, 2022 
through March 31, 2023. On March 28, 2023, NMFS received an application 
for the renewal of that initial IHA. As described in the application 
for renewal IHA, the activities for which incidental take is requested 
consist of activities that are covered by the initial authorization but 
were not completed prior to its expiration. As required, the applicant 
also provided a preliminary monitoring report, which confirms that the 
applicant has implemented the required mitigation and monitoring, and 
which also shows that no impacts of a scale or nature not previously 
analyzed or authorized have occurred as a result of the activities 
conducted.

Description of the Specified Activities and Anticipated Impacts

    Port San Luis breakwater is approximately 2,400 feet (730 m) long 
and 20 feet (6 m) wide. Repair identified in the initial IHA was 
designed to focus on the most heavily damaged 1,420 feet (430 m) at the 
seaward end of the breakwater. The footprint of the breakwater would 
not be changed, but the crest elevation would be raised 3 feet (1 m) 
from +13 feet Mean Lower Low Water (MLLW) to +16 feet MLLW for 
hydraulic stability, to accommodate larger armor stone, to meet design 
criteria, and to account for sea level rise. Repair work could 
potentially extend to the seabed to ensure a stable slope and 
structural stability is maintained.
    The project was initially described as consisting of the repair of 
a deteriorating breakwater at Port San Luis, California. The project is 
required to protect Port San Luis Harbor and maintain safe navigability 
within the port. Repair work includes minor excavation of shoaled 
sediment (~15,000 cubic yards (11,470 cubic meters)) adjacent to the 
leeward side of the breakwater to create adequate depths for barges and 
support boats to access the breakwater for the repair. Approximately 
29,000 tons (26,310 metric tons) of existing stone would need to be 
reset and 60,000 tons (54,430 metric tons) of new stone (stones range 
from 5 to 20 tons (4.5-18.1 metric tons) each) would be placed to 
restore the most heavily damaged portion of the breakwater. The project 
was expected to take no more than 174 work days over 7 months.
    Due to a combination of contracting and weather delays only a 
subset of the activities in the initial IHA were completed. 
Specifically, under the initial IHA, the ACOE has completed: (1) 
excavation of shoaled sediment adjacent to the leeward side of the 
breakwater to create adequate depths for barges and other vessels to 
access the breakwater for the repair work, (2) repair of 450 feet 
(137.2 meters) of the breakwater. This renewal request is to cover the 
subset of the activities covered in the initial IHA that will not be 
completed during the effective IHA period due to project delays. The 
remaining breakwater repair work under the renewal IHA would involve 
completing the remaining 970 feet (295.7 meters) of repairs of the 
breakwater and is expected to take no more than 162 workdays.
    The likely or possible impacts of the ACOE's proposed activity on 
marine mammals could involve both non-acoustic and acoustic stressors 
and is unchanged from the impacts described in the initial IHA. 
Potential non-acoustic stressors could result from the physical and 
visual presence of the equipment, vessels, and personnel. Acoustic 
stressors include effects of heavy equipment operation, rock setting, 
and sediment movement. The effects of underwater and in-air noise and 
visual disturbance from the ACOE's proposed activities have the 
potential to result in Level B harassment of marine mammals in the 
action area.

Detailed Description of the Activity

    A detailed description of the construction activities for which 
take is proposed here may be found in the notices of the proposed and 
final IHAs for the initial authorization (86 FR 14579, March 17, 2021; 
86 FR 22151, April 27, 2021). As previously mentioned, this request is 
for a subset of the activities authorized in the initial IHA that would 
not be completed prior to its expiration due to project delays. The 
location, timing, and nature of the activities, including the types of 
equipment planned for use, are identical to those described in the 
previous notice for the initial IHA. The proposed renewal IHA would be 
effective from May 1, 2023 through March 31, 2024.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which authorization of take is proposed here, including information 
on abundance, status, distribution, and hearing, may be found in the 
notice of the proposed IHA for the initial authorization (86 FR 14579, 
March 17, 2021). NMFS has reviewed the monitoring data from the initial 
IHA, recent draft Stock Assessment Reports, information on relevant 
Unusual Mortality Events, and other scientific literature, and 
determined that neither this nor any other new information affects 
which species or stocks have the potential to be affected or the 
pertinent information in the Description of the Marine Mammals in the 
Area of Specified Activities contained in the supporting documents for 
the initial IHA (86 FR 14579, March 17, 2021).

Potential Effects on Marine Mammals and Their Habitat

    A description of the potential effects of the specified activity on 
marine mammals and their habitat for the activities for which the 
authorization of take is proposed here may be found in the notice of 
the proposed IHA for the initial authorization (86 FR 14579, March 17, 
2021). NMFS has reviewed the monitoring data from the initial IHA, 
recent draft Stock Assessment Reports, information on relevant Unusual 
Mortality Events, and other scientific literature, and determined that 
neither this nor any other new information affects our initial analysis 
of impacts on marine mammals and their habitat.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
take for the specified activity are found in the notices of the 
proposed and final IHAs for the initial authorization (86 FR 14579, 
March 17, 2021; 86 FR 22151, April 27, 2021). Specifically, days of 
operation, area or space within which harassment is likely to occur, 
and marine mammal occurrence data applicable to this authorization 
remain

[[Page 23005]]

unchanged from the previously issued IHA. Similarly, the stocks taken, 
methods of take, daily take estimates and types of take remain 
unchanged from the previously issued IHA. The number of takes proposed 
for authorization in this renewal are a subset of the initial 
authorized takes that better represent the amount of activity left to 
complete. These takes, which reflect the lower number of remaining days 
of work (162), are indicated below in Table 1.

  Table 1--Proposed Amount of Taking, by Level B Harassment, by Species and Stock and Percent of Take by Stock
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                                                                                                    Percent of
                    Species                                   Stock                Proposed take       stock
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Harbor seal...................................  California......................           1,674             5.4
Steller sea lions.............................  Eastern DPS.....................           3,124             7.2
California sea lion...........................  U.S.............................          48,933              19
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Description of Proposed Mitigation, Monitoring and Reporting Measures

    The proposed mitigation, monitoring, and reporting measures 
included as requirements in this authorization are identical to those 
included in the FR notice announcing the issuance of the initial IHA, 
and the discussion of the least practicable adverse impact included in 
that document remains accurate (86 FR 22151, April 27, 2021). The 
following mitigation, monitoring, and reporting measures are proposed 
for this renewal:
     Monitoring must take place from 30 minutes prior to 
initiation of construction activity (i.e., pre-start clearance 
monitoring) through 30 minutes post-completion of construction 
activity.
     The ACOE must avoid direct physical interaction with 
marine mammals during construction activity. If a marine mammal comes 
within 10 m of such activity, operations must cease and vessels must 
reduce speed to the minimum level required to maintain steerage and 
safe working conditions, as necessary to avoid direct physical 
interaction.
     Pre-start clearance monitoring must be conducted during 
periods of visibility sufficient for the lead Protected Species 
Observer (PSO) to determine the shutdown zones clear of marine mammals. 
Construction may commence when the determination is made.
     If construction is delayed or halted due to the presence 
of a marine mammal, the activity may not commence or resume until 
either the animal has voluntarily exited and been visually confirmed 
beyond the shutdown zone or 15 minutes have passed without re-detection 
of the animal.
     The Holder must use soft start techniques. Soft start 
requires contractors and equipment to slowly approach the work site 
creating a visual disturbance allowing animals in close proximity to 
construction activities a chance to leave the area prior to stone 
resetting or new stone placement. Contractors shall avoid walking or 
driving equipment through the seal haulout. A soft start must be 
implemented at the start of each day's construction activity and at any 
time following cessation of activity for a period of 30 minutes or 
longer.
     Vessels would approach the breakwater perpendicular to the 
area they need to be as much as is feasible to minimize interactions 
with pinnipeds on or near the breakwater.
     The Holder must ensure that construction supervisors and 
crews, the monitoring team, and relevant ACOE staff are trained prior 
to the start of construction activity subject to this IHA, so that 
responsibilities, communication procedures, monitoring protocols, and 
operational procedures are clearly understood. New personnel joining 
during the project must be trained prior to commencing work.
     Construction activity must be halted upon observation of 
either a species for which incidental take is not authorized or a 
species for which incidental take has been authorized but the 
authorized number of takes has been met, entering or within a 200 m 
Level B harassment zone.
     Construction work will start at the landward end of the 
breakwater as much as feasible.
     The ACOE must employ one protected species observers 
(PSOs) to monitor the shutdown and Level B harassment zones.
     Monitoring will be conducted 30 minutes before, during, 
and 30 minutes after construction activities. In addition, observers 
shall record all incidents of marine mammal occurrence, regardless of 
distance from activity, and shall document any behavioral reactions in 
concert with distance from construction activity.
     The ACOE must submit a draft report detailing all 
monitoring within 90 calendar days of the completion of marine mammal 
monitoring or 60 days prior to the issuance of any subsequent IHA for 
this project, whichever comes first.
     The ACOE must prepare and submit final report within 30 
days following resolution of comments on the draft report from NMFS.
     The ACOE must submit all PSO datasheets and/or raw 
sighting data (in a separate file from the Final Report referenced 
immediately above).
     The ACOE must report injured or dead marine mammals.

Comments and Responses

    As noted previously, NMFS published a notice of a proposed IHA (86 
FR 14579, March 17, 2021) and solicited public comments on both our 
proposal to issue the initial IHA for Port San Luis breakwater repairs 
and on the potential for a renewal IHA, should certain requirements be 
met. During the 30-day public comment period, NMFS received no comments 
on either the proposal to issue the initial IHA for the ACOE's 
construction activities or on the potential for a renewal IHA.

Preliminary Determinations

    The proposed renewal request consists of a subset of activities 
analyzed through the initial authorization described above. In 
analyzing the effects of the activities for the initial IHA, NMFS 
determined that the ACOE's activities would have a negligible impact on 
the affected species or stocks and that authorized take numbers of each 
species or stock were small relative to the relevant stocks (e.g., less 
than one-third the abundance of all stocks). The mitigation measures 
and monitoring and reporting requirements as described above are 
identical to the initial IHA.
    NMFS has preliminarily concluded that there is no new information 
suggesting that our analysis or findings should change from those 
reached for

[[Page 23006]]

the initial IHA. Based on the information and analysis contained here 
and in the referenced documents, NMFS has determined the following: (1) 
the required mitigation measures will effect the least practicable 
impact on marine mammal species or stocks and their habitat; (2) the 
authorized takes will have a negligible impact on the affected marine 
mammal species or stocks; (3) the authorized takes represent small 
numbers of marine mammals relative to the affected stock abundances; 
(4) ACOE's activities will not have an unmitigable adverse impact on 
taking for subsistence purposes as no relevant subsistence uses of 
marine mammals are implicated by this action; and (5) appropriate 
monitoring and reporting requirements are included.

Endangered Species Act

    No incidental take of ESA-listed species is authorized or expected 
to result from this activity. Therefore, NMFS has determined that 
formal consultation under section 7 of the ESA is not required for this 
action.

Proposed Renewal IHA and Request for Public Comment

    As a result of these preliminary determinations, NMFS proposes to 
issue a renewal IHA to the ACOE for conducting Port San Luis breakwater 
repairs in Avila Beach, Ca, from May 1, 2023 through November 31, 2023, 
provided the previously described mitigation, monitoring, and reporting 
requirements are incorporated. A draft of the proposed and final 
initial IHA can be found at https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act. We 
request comment on our analyses, the proposed renewal IHA, and any 
other aspect of this notice. Please include with your comments any 
supporting data or literature citations to help inform our final 
decision on the request for MMPA authorization.

    Dated: April 10, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-07862 Filed 4-13-23; 8:45 am]
BILLING CODE 3510-22-P