Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Phase II of the Richmond-San Rafael Bridge Restoration Project, 51778-51784 [2023-16604]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 149 (Friday, August 4, 2023)]
[Notices]
[Pages 51778-51784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16604]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD172]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Phase II of the Richmond-San Rafael 
Bridge Restoration Project

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 
the California Department of Transportation (Caltrans) to incidentally 
harass marine mammals during construction activities associated with 
the Richmond-San Rafael Bridge Restoration project in Richmond, CA.

DATES: This authorization is effective from August 1, 2023 through 
March 30, 2024.

ADDRESSES: 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/action/incidental-take-authorization-california-department-transportations-richmond-san-rafael. In case of problems accessing these documents, 
please call the contact listed below.

FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected 
Resources, NMFS, (301) 427-8401.

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 proposed or, if the taking is limited to harassment, a notice of a 
proposed IHA is 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 the 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 the 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 December 28, 2022, NMFS received a request from Caltrans for an 
IHA to take marine mammals incidental to construction activities to 
restore portions of the Richmond-San Rafael Bridge. Following NMFS' 
review of the application, Caltrans submitted a revised version on 
April 14, 2023, which was deemed adequate and complete on May 11, 2023. 
Caltrans' request is for take of harbor seals (Phoca vitulina) by Level 
B harassment only. Neither Caltrans nor NMFS expect serious injury or 
mortality to result from this activity and, therefore, an IHA is 
appropriate. There are no changes from the proposed authorization to 
the final authorization.

Description of the Specified Activity

Overview

    Caltrans will conduct construction activities to restore a portion 
of the Richmond-San Rafael Bridge. Prior to restoration work Caltrans 
will install a debris containment system to ensure contaminants from 
construction are not deposited into San Francisco Bay. During the 
deployment and retrieval of the containment system disturbance (i.e., 
Level B harassment) of harbor seals may occur. Once the debris 
containment system is deployed the restoration work on the bridge is 
not expected to result in any takes of marine mammals, as the 
containment system is expected to shield seals from disturbance as a 
result of visual and acoustic stimuli. Takes of harbor seals will occur 
at the nearby Castro Rocks haulout. The Richmond-San Rafael Bridge is 
located in the northern portion of San Francisco Bay and is located 
between Richmond, CA and San Rafael, CA. The debris

[[Page 51779]]

containment system will be used on Piers 52-57. The deployment and 
retrieval of the containment system will only occur during between 
August 1 and March 30 to avoid pupping and molting seasons of harbor 
seals.
    It is expected that the debris containment system will take up to 
20 days to deploy and 10 days to remove (30 total days). The debris 
containment system will only be deployed during daylight hours but 
restoration work will occur throughout the day and night following 
deployment.
    A detailed description of the planned construction project is 
provided in the Federal Register notice for the proposed IHA (88 FR 
41920, June 28, 2023). Since that time, no changes have been made to 
the planned activities. Therefore, a detailed description is not 
provided here. Please refer to that Federal Register notice for the 
description of the specific activity.

Comments and Responses

    A notice of NMFS' proposal to issue an IHA to Caltrans was 
published in the Federal Register on June 28, 2023 (88 FR 41920). That 
notice described, in detail, Caltrans' activity, the marine mammal 
species that may be affected by the activity, and the anticipated 
effects on marine mammals. In that notice, we requested public input on 
the request for authorization described therein, our analyses, the 
proposed authorization, and any other aspect of the notice of proposed 
IHA, and requested that interested persons submit relevant information, 
suggestions, and comments. During the 30-day public comment period, 
NMFS did not receive any public comments.

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. NMFS 
fully considered all of this information, and we refer the reader to 
these descriptions in materials that are referenced in the document, 
instead of reprinting the information. Additional information regarding 
population trends and threats may be found in NMFS' Stock Assessment 
Reports (SARs; 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' website (https://www.fisheries.noaa.gov/find-species).
    Table 1 lists all species or stocks for which take is expected and 
authorized for this activity, and summarizes information related to the 
population or stock, including regulatory status under the MMPA and 
Endangered Species Act (ESA) and potential biological removal (PBR), 
where known. 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' SARs). While no 
serious injury or 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 or 
stocks 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' stock abundance estimates for most species represent the total 
estimate of individuals within the geographic area, if known, that 
comprises that stock. All managed stocks in this region are assessed in 
NMFS' Pacific SARs, and NMFS has reviewed the most current information 
for the species. All values presented in Table 1 are the most recent 
available at the time of publication and are available online at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments.

                                              Table 1--Species Likely Impacted by the Specified Activities
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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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                                                               Order Carnivora--Pinnipedia
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Family Phocidae (earless seals):
Harbor seal.........................  Phoca vitulina.........  California............  N                  30,968 (N/A, 27,348,        1,641          43
                                                                                                           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: https://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 detailed description of the species likely to be affected by the 
construction project, including a brief introduction to the affected 
stock as well as available information regarding population trends and 
threats, and information regarding local occurrence, were provided in 
the Federal Register notice for the proposed IHA (88 FR 41920, June 28, 
2023); since that time, we are not aware of any changes in the status 
of the stock; therefore, a detailed description is not provided here. 
Please refer to that Federal Register notice for the description. 
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 effects of the installation and removal of the debris 
containment system from Caltrans' construction activities have the 
potential to result in behavioral harassment of marine mammals in the 
vicinity of the survey area. The notice of proposed IHA (88 FR 41920, 
June 28, 2023) included a discussion of the effects of the visual 
disturbance of the installation and removal of the debris containment 
system on marine mammals and the potential effects of that activity on 
marine mammals and their habitat. That information and analysis is not 
repeated here; please refer to the notice of proposed IHA (88 FR 41920, 
June 28, 2023).

[[Page 51780]]

Estimated Take of Marine Mammals

    This section provides an estimate of the number of incidental takes 
authorized through the 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 are by Level B harassment only, in the form of 
disruption of behavioral patterns for individual marine mammals 
resulting from exposure to the novel stimulus of the installation and 
removal of the debris containment system. Based on the nature of the 
activity, Level A harassment is neither anticipated nor authorized.
    As described previously, no serious injury or mortality is 
authorized for this activity. Below, we describe how the take numbers 
are estimated.

Marine Mammal Occurrence and Take Estimates

    In this section, we provide information about the occurrence of 
marine mammals, including density or other relevant information, which 
will inform the take calculations. We will also describe how this 
information is brought together to produce a quantitative take estimate 
for each species.
    Castro Rocks is the largest harbor seal haulout site in northern 
San Francisco Bay and is the second largest pupping site in San 
Francisco Bay (Kopec and Harvey 1995). The harbor seal pupping season 
is from April to July in San Francisco Bay. Seals are present on the 
haulout year round during medium to low tides (Green et al., 2004). 
Recent observations at the Castro Rocks haulout site reported 
approximately 300 seals during the pupping and molting seasons (Codde 
and Allen, 2020). The highest mean number of harbor seals observed at 
Castro Rocks during recent annual National Park Service surveys was 237 
seals observed in 2019 (Codde and Allen, 2013, 2015, 2017, 2020; Codde 
2020).
    Caltrans expects to harass approximately 300 harbor seals per day 
during the installation and removal of the debris containment system. 
It is expected to take 30 days for Caltrans to complete this process. 
Based on these assumptions Caltrans requested authorization of 9,000 
takes by Level B harassment of harbor seals while hauled out. NMFS 
concurs with this request.

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 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, NMFS 
considers 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, and impact on 
operations.

Mitigation for Marine Mammals and Their Habitat

    Caltrans must implement the following measures during Phase II of 
the Richmond-San Rafael Bridge Restoration Project:
    (1) Seasonal Work Restrictions: installation or removal of the 
debris containment system must not occur between Piers 52-57 from April 
1-July 31 due to the pupping and molting period of harbor seals.
    (2) Work must not take place outside of the containment system on 
the bridge between Piers 52-57 from April 1 to July 31.
    (3) A non-disturbance buffer will be established within 400 feet 
(121 meters) of Castro Rocks on the south side of bridge.
    (4) Staging of barges will not be allowed in the project area.
    (5) Routes for watercraft to reach work locations will be 
predetermined in consultation with the project biologist to avoid 
harassment or take of marine mammals hauled out at Castro Rocks.
    (6) No piles may be driven or vibrated to create staging locations 
for any watercraft. Barges and vessels will be tethered to the existing 
concrete bridge piers.
    Based on our evaluation of the applicant's measures, NMFS has 
determined that the mitigation measures provide the means of 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 while 
conducting the activities. 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

[[Page 51781]]

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 activity; 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.
    Caltrans will monitor to collect data on marine mammal behavior, 
counts of the individuals observed, and the frequency of the 
observations. Caltrans will collect sighting data and observations on 
behavioral responses to construction for marine mammal species observed 
in the region of activity during the period of construction. All 
observers will be trained in the identification of marine mammals and 
marine mammal behaviors.
     Protected species observers (PSOs) must be independent 
observers (i.e., not construction personnel). All PSOs must have the 
ability to conduct field observations and collect data according to 
assigned protocols, be experienced in field identification of marine 
mammals and their behaviors. Caltrans must submit their resumes to NMFS 
for approval;
     Biological monitoring must occur 5 days prior to the 
Project's start date, to establish baseline observations.
     Observation periods will encompass different tide levels 
and hours of the day. Monitoring of marine mammals around the 
construction site will be conducted using binoculars as necessary.
     The location of the PSOs will be at a monitoring platform 
positioned on Pier 55 of the Richmond-San Rafael Bridge, at the closest 
pier of the Richmond-San Rafael Bridge to Castro Rocks. Pier 55 is 
approximately 21 meters from the nearest rock at Castro Rocks harbor 
seal colony.

Data Collection

    Caltrans will record detailed information about counts and 
behaviors of all marine mammal species observed, times of observations, 
construction activities that occurred, any visual disturbances, and 
weather conditions, with particular focus on harbor seals at Castro 
Rocks. PSOs will use approved data forms to record the following 
information:
     Observation position and start and end times of 
observations;
     Weather conditions (sunny/cloudy, wind speed, fog, 
visibility), temperature, tide level, current, and sea state;
     Species counts (including with or without pup, and, if 
possible, sex and age classes of any observed marine mammal species;
     Identifying marks or color (scars, red pelage, etc.);
     Position relative to Richmond-San Rafael bridge (distance 
and direction);
     Movement (direction and relative speed);
     Behavior (logging (resting at the surface), swimming, 
spyhopping (raising above the water surface to view the area), 
foraging, etc.);
     Duration of sighting or times of multiple sightings of the 
same individual; and
     Details of any marine mammal behavioral disturbances, 
including information regarding the activity (e.g. disturbance from the 
containment system installation and removal or construction related 
disturbance within or outside the containment system), the type of 
behavioral response to the disturbance (flushing or head posturing), 
and the rate of disturbance on Castro Rocks. Disturbance events must be 
categorized according to the 3-point scale as shown in Table 2.

           Table 2--Levels of Pinniped Behavioral Disturbance
------------------------------------------------------------------------
          Level               Type of response           Definition
------------------------------------------------------------------------
1.......................  Alert..................  Seal head orientation
                                                    or brief movement in
                                                    response to
                                                    disturbance, which
                                                    may include turning
                                                    head towards the
                                                    disturbance, craning
                                                    head and neck while
                                                    holding the body
                                                    rigid in a u-shaped
                                                    position, changing
                                                    from a lying to a
                                                    sitting position, or
                                                    brief movement of
                                                    less than twice the
                                                    animal's body
                                                    length.
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.
------------------------------------------------------------------------
* Only observations of disturbance Levels 2 and 3 are recorded as takes.

Reporting Measures

    Caltrans shall submit a draft report to NMFS within 90 days of the 
completion of marine mammal monitoring, or 60 days prior to the 
issuance of any subsequent IHA for this project (if required), 
whichever comes first. The annual report will detail the monitoring 
protocol, summarize the data recorded during monitoring, and estimate 
the number of marine mammals that may have been harassed. If no 
comments are received from NMFS within 30 days, the draft final report 
will become final. If comments are received, a final report must be 
submitted up to 30 days after receipt of comments. All PSO datasheets 
and/or raw sighting data must be submitted with the draft marine mammal 
report.
    Reports shall contain the following information:
     Dates and times (begin and end) of all marine mammal 
monitoring;
     Construction activities occurring during each daily 
observation period including: (a) what type of restoration work is 
being completed, and (b) the total duration of work completed;
     PSO locations during monitoring; and
     Environmental conditions during monitoring periods (at 
beginning and end of PSO shift and whenever conditions change 
significantly), including sea state and any other relevant weather 
conditions including cloud cover, fog, sun glare, and overall 
visibility to the horizon, and estimated observable distance.
    Upon observation of a marine mammal, the following information must 
be reported:

[[Page 51782]]

     Name of PSO who sighted the animal(s) and PSO location and 
activity at time of sighting;
     Time of sighting;
     Identification of the animal(s) (e.g., genus/species, 
lowest possible taxonomic level, or unidentified), and PSO confidence 
in identification;
     Distance and location of each observed marine mammal 
relative to the bridge restoration work;
     Estimated number of animals by species (min/max/best 
estimate);
     Estimated number of animals by cohort (adults, pups, and 
group composition, etc.);
     Description of any marine mammal behavioral observations 
(e.g., observed behaviors such as feeding or traveling), including an 
assessment of behavioral responses thought to have resulted from the 
activity (e.g., no response or changes in behavioral state such 
flushing or head posturing); and
     Detailed information about implementation of any 
mitigation measures, a description of specified actions that ensured, 
and resulting changes in behavior of the animal(s), if any.

Reporting Injured or Dead Marine Mammals

    In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by the IHA 
(if issued), such as an injury (Level A harassment), serious injury or 
mortality (e.g., ship-strike, gear interaction, and/or entanglement), 
Caltrans will immediately cease the specified activities and 
immediately report the incident to the Office of Protected Resources 
([email protected]) and the West Coast Regional 
Stranding Coordinator. The report will include the following 
information:
     Time, date, and location (latitude/longitude) of the 
incident;
     Name and type of vessel involved (if applicable);
     Vessel's speed during and leading up to the incident (if 
applicable);
     Description of the incident;
     Status of all sound source used in the 24 hours preceding 
the incident;
     Water depth;
     Environmental conditions (e.g., wind speed and direction, 
sea state, cloud cover, and visibility);
     Description of all marine mammal observations in the 24 
hours preceding the incident;
     Species identification or description of the animal(s) 
involved;
     Fate of the animal(s); and
     Photographs or video footage of the animal(s) (if 
equipment is available).
    Activities will not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with Caltrans to 
determine necessary actions to minimize the likelihood of further 
prohibited take and ensure MMPA compliance. Caltrans will not be able 
to resume their activities until notified by NMFS via letter, email, or 
telephone.
    In the event that Caltrans discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (i.e., in less than 
a moderate state of decomposition as described in the next paragraph), 
Caltrans will immediately report the incident to the Office of 
Protected Resources, NMFS, and the West Coast Regional Stranding 
Coordinator. The report will include the same information identified in 
the section above. Activities will be able to continue while NMFS 
reviews the circumstances of the incident. NMFS will work with Caltrans 
to determine whether modifications in the activities are appropriate.
    In the event that Caltrans discovers an injured or dead marine 
mammal, and the lead PSO determines that the injury or death is not 
associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), Caltrans will report the incident 
to Office of Protected Resources, NMFS, and West Coast Regional 
Stranding Coordinator, within 24 hours of the discovery. Caltrans will 
provide photographs or video footage (if available) or other 
documentation of the stranded animal sighting to NMFS and the Marine 
Mammal Stranding Network. Construction activities will be permitted to 
continue.

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 impacts or responses (e.g., intensity, duration), 
the context of any impacts or responses (e.g., critical reproductive 
time or location, foraging impacts affecting energetics), 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' 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 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).
    NMFS does not expect Caltrans' construction activities to cause 
long-term behavioral disturbance that will negatively impact an 
individual animal's fitness, or result in injury, serious injury, or 
mortality. Although the installation and deployment of the debris 
containment system may disturb harbor seals hauled out at Castro Rocks, 
NMFS expects those impacts to be of short duration (20 days for 
installation and 10 day for removal) with minimal effect to the 
animals. Minor and brief responses including short-duration startle 
reactions, are not likely to constitute disruption of behavioral 
patterns, such as migration, nursing, breeding, feeding, or sheltering.
    The harbor seal stock for which incidental take is authorized is 
not listed as threatened or endangered under the ESA or determined to 
be strategic or depleted under the MMPA. The mitigation and monitoring 
measures, including the establishment of seasonal work schedules, a 
non-disturbance buffer around Castro Rocks, and watercraft routes, will 
minimize disturbance of seals on Castro Rocks and make Level A 
harassment unlikely. Therefore, the mitigation and monitoring measures 
are expected to eliminate the potential for Level A harassment as well 
as reduce the amount and intensity for Level B harassment. The 
construction activities analyzed here are similar to, or less impactful 
than, numerous construction activities conducted in other similar 
locations which have occurred with no reported injuries or mortality to 
marine mammals, and no known long-term adverse consequences from 
behavioral harassment.
    Anticipated and authorized takes are expected to be limited to 
short-term

[[Page 51783]]

Level B harassment (behavioral disturbance) as construction activities 
will occur over the course of 30 days. Effects on individuals taken by 
Level B harassment, based upon reports in the literature as well as 
monitoring from other similar activities, may include increased 
swimming speeds, increased surfacing time, or decreased foraging (e.g., 
Thorson and Reyff 2006). Individual animals, even if taken multiple 
times, would likely move away from the visual disturbance of the debris 
containment system installation and removal. Repeated exposures of 
individuals to this visual disturbance that could cause Level B 
harassment are unlikely to considerably disrupt foraging behavior or 
result in significant decrease in fitness, reproduction, or survival 
for the affected individuals. In all, there will be no adverse impacts 
to the stock as a whole.
    There is no unusual mortality event (UME) currently associated with 
the harbor seal stock and there are no Biologically Important Areas or 
known important habitat, aside from Castro Rocks itself, within the 
project area. While essential fish habitat (EFH) for several fish 
species does exist in the project area, the activities will not modify 
existing marine mammal habitat since there is no in-water work. This 
construction activity should not impact marine mammals' foraging 
opportunities.
    In summary and as described above, the following factors support 
our determination that the impacts resulting from this activity are not 
expected to adversely affect any of the species or stocks through 
effects on annual rates of recruitment or survival:
     No serious injury or mortality is anticipated or 
authorized;
     Anticipated impacts of Level B harassment include 
temporary behavior modifications;
     Short duration and intermittent nature of the debris 
containment system deployment and removal;
     The specified project area is very small relative to the 
overall habitat ranges of the species and do not include habitat areas 
of special significance (Biologically Important Areas);
     The lack of anticipated significant or long-term effects 
to marine mammal habitat;
     The presumed efficacy of the mitigation measures in 
reducing the effects of the specified activity; and,
     Monitoring reports from other construction work in San 
Francisco Bay have documented little to no effect on individuals of the 
same species impacted by the specified activities.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the monitoring and mitigation 
measures, NMFS finds that the total marine mammal take from the 
activity will have a negligible impact on the affected marine mammal 
stock.

Small Numbers

    As noted previously, only take of small numbers of marine mammals 
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.
    The amount of take NMFS authorizes in the IHA is below one-third of 
the estimated stock abundance for harbor seals (see Estimated Take of 
Marine Mammals). The take percentage of the estimated stock of harbor 
seals, if all estimated take events are assumed to occur to new 
individuals, is 29.1 percent. However, this take estimate is assumed to 
represent repeated takes of the same individuals over time and, 
therefore, the take estimate represents a significantly smaller actual 
percentage of the total stock. It is expected that approximately 300 
harbor seals are hauled out on Castro Rocks on any given day during the 
project. The majority of these 300 individuals are expected to be 
comprised of the same animals during the duration of the project. 
Therefore, it can be reasonably expected that the percentage of 
individuals of the overall stock of harbor seals is closer to 
approximately 1 percent.
    Based on the analysis contained herein of the activity (including 
the 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 will not 
have an unmitigable adverse impact on the availability of such species 
or stocks for taking for subsistence purposes.

Endangered Species Act

    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 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.

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 issuance of an IHA) 
and alternatives with respect to potential impacts on the human 
environment.
    This action is consistent with categories of activities identified 
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or 
mortality) 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 
issuance of this IHA qualifies to be categorically excluded from 
further NEPA review.

Authorization

    NMFS has issued an IHA to Caltrans for the potential harassment of 
small numbers of harbor seals incidental to the Phase II of the 
Richmond-San Rafael Bridge Restoration Project in Richmond, CA, that 
includes the previously explained mitigation, monitoring and reporting 
requirements.


[[Page 51784]]


    Dated: July 31, 2023
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-16604 Filed 8-1-23; 4:15 pm]
BILLING CODE 3510-22-P