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, 62345-62348 [2023-19523]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 174 (Monday, September 11, 2023)]
[Notices]
[Pages 62345-62348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19523]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XD291]


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; issuance of renewal 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 a Renewal incidental harassment authorization 
(IHA) to the California Department of Fish and Wildlife (CDFW) to 
incidentally harass marine mammals incidental to the Elkhorn Slough 
Tidal Marsh Restoration Project, Phase III, in Monterey County, 
California.

DATES: This Renewal IHA is valid from September 16, 2023, through 
September 15, 2024.

ADDRESSES: 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 below.

FOR FURTHER INFORMATION CONTACT: Alyssa Clevenstine, 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 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

[[Page 62346]]

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: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals.

History of Request

    On September 16, 2021, NMFS issued an IHA to CDFW to take marine 
mammals incidental to Phase III of the Elkhorn Slough Tidal Marsh 
Restoration Project in Monterey County, CA (86 FR 52644, September 22, 
2021), effective from September 16, 2021 through September 15, 2022. On 
July 12, 2022, CDFW informed NMFS that the project was delayed and none 
of the work identified in the initial IHA (i.e., restoration work at 
the Seal Bend Restoration Area) had occurred, and submitted a request 
for re-issuance of the initial IHA with new effective dates of 
September 16, 2022, through September 15, 2023 (87 FR 56631, September 
15, 2022). On July 6, 2023, NMFS received an application for the 
renewal of the IHA. As described in the application for renewal, the 
activities for which incidental take is requested consist of activities 
that are covered by the initial authorization but will not be completed 
prior to its expiration. As required, the applicant also provided 
preliminary monitoring results 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. The 
notice of the proposed Renewal IHA was published on August 1, 2023 (88 
FR 50113).

Description of the Specified Activities and Anticipated Impacts

    Phase III of CDFW's construction Elkhorn Slough Tidal Marsh 
Restoration Project consists of relocating soil from an upland area 
through the use of heavy earth-moving equipment to the Seal Bend 
Restoration Area, and will restore 28.6 acres (11.57 hectares) within a 
12 month period. The planned activities (including mitigation, 
monitoring, and reporting) and anticipated impacts on the affected 
stocks are the same as those analyzed and authorized through the 
initial IHA.
    A detailed description of the planned restoration activities is 
found in the Federal Register notice for the proposed initial IHA (86 
FR 43204, August 6, 2021). The location, timing, and nature of the 
activities, including the types of equipment planned for use, are 
identical to those described in the initial IHA. The mitigation and 
monitoring are also as prescribed in the initial IHA.
    Construction activities are expected to produce airborne noise and 
visual disturbance that have the potential to result in behavioral 
harassment of Pacific harbor seals (Phoca vitulina richardii). A 
description of the methods and inputs used to estimate take anticipated 
to occur and, ultimately, the take that was authorized is included in 
the previous documents referenced above. The data inputs and methods of 
estimating take are identical to those used in the initial IHA. NMFS 
has reviewed recent 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 the initial IHA. No work was completed under the initial 
IHA and only 15 days of work have been completed since reissuance of 
the initial IHA.
    This renewal is to cover a subset of the activities described for 
the initial IHA that will not be completed during the effective IHA 
period. CDFW plans to continue construction activities between 
September 2023 and September 2024. CDFW estimates it will take 225 days 
to complete construction necessary to support restoration of the Seal 
Bend Restoration Area, as only 15 days of work out of the 240 days of 
planned construction are expected to be completed within the effective 
dates of the currently active IHA.
    The likely or possible impacts of CDFW's 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 presence of construction 
equipment and personnel. Acoustic stressors include effects of heavy 
equipment operation during soil excavation, transport, and placement. 
The effects of airborne noise and visual disturbance from CDFW's 
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 authorized here may be found in the notices of the proposed and 
final IHAs for the initial authorization (86 FR 43204, August 6, 2021; 
86 FR 52644, September 22, 2021). The location, timing, and nature of 
the activities, including the types of equipment planned for use, are 
identical to those described in the previous notices.
    This Renewal IHA is effective for a period of 1 year from September 
16, 2023 through September 15, 2024.

[[Page 62347]]

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
for which take is authorized, including information on abundance, 
status, distribution, and hearing, may be found in the notice of the 
proposed IHA for the initial authorization (86 FR 43204, August 6, 
2021). NMFS has reviewed the preliminary monitoring data from the 
reissued 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 43204, August 6, 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 take is 
authorized here may be found in the Federal Register notices of the 
proposed IHA for the initial authorization (86 FR 43204, August 6, 
2023). NMFS has reviewed the preliminary monitoring data from the 
reissued IHA, recent draft stock assessment reports, information on 
relevant unusual mortality events, other scientific literature, and the 
public comments, 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 notice of the proposed 
IHA for the initial authorization (86 FR 43204, August 6, 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 unchanged from the initial IHA. Similarly, 
the stock taken, methods of take, daily take estimates, and types of 
take remain unchanged from the initial IHA. The number of takes 
authorized through the renewal IHA are a subset of the initially 
authorized takes that represent the amount of activity left to 
complete. These takes, which reflect the lower number of remaining days 
of work (225 days), 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                  Scientific name             Stock           Proposed take       stock
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Harbor seal.......................  Phoca vitulina         California...........           1,800             5.8
                                     richardii.
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Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring, and reporting measures included as 
requirements in this authorization are identical to those included in 
the Federal Register notice announcing the issuance of the initial IHA, 
and the discussion of the least practicable adverse impact included in 
that document and the notice of the proposed IHA remains accurate. The 
following measures are included in the renewal IHA:
     Construction work must occur only during daylight hours 
and should environmental conditions deteriorate such that marine 
mammals within the entire shutdown zone would not be visible (e.g., 
fog, heavy rain, smoke), construction must be delayed until the 
Protected Species Observer (PSO) is confident marine mammals within the 
shutdown zone could be detected;
     CDFW must fulfill visual monitoring requirements, which 
includes the use of NMFS-approved PSOs and the establishment of a Level 
B harassment zone within 300 meters (m) of all construction activities;
     A 30 minute pre-construction clearance period must occur 
prior to the start of ramp-up (e.g., ramp up by moving around the 
project area and starting equipment sequentially) and construction 
activities;
     CDFW must shutdown heavy machinery work if a marine mammal 
comes within 10 m;
     During harbor seal pupping season (March through July), 
CDFW must not initiate construction activities within 300 m of a mom/
pup pair that is hauled out, or within 100 m of a mom/pup pair in the 
water. If there is a gap in construction activities of more than an 
hour or if construction moves to a different area, this initiation 
protocol must again be implemented. During site containment activities 
that are underway, heavy machinery must not approach closer than 100 m 
of where mothers and pups are actively hauled out. If a pup less than 1 
week old (neonate) comes within 20 m of where heavy machinery is 
working, construction activities in that area must be shut down or 
delayed until the pup has left the area. In the event that a pup less 
than 1 week old remains within those 20 m, NMFS will be consulted to 
determine the appropriate course of action;
     Construction activities 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 the 
harassment zone;
     CDFW must conduct a census of marine mammals in the 
project area and the area surrounding the project at least 30 minutes 
prior to the beginning of construction on monitoring days, and again 30 
minutes after the completion of construction activities. CDFW must also 
conduct hourly counts of animals hauled out and in the water within at 
least the Level B harassment zone, as well as reactions observed in 
relation to construction activities;
     CDFW 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;
     CDFW must prepare and submit final report within 30 days 
following resolution of comments on the draft report from NMFS;
     CDFW must submit all PSO datasheets and/or raw sighting 
data (in a separate file (e.g., Microsoft Excel or similar) from the 
Final Report referenced immediately above); and,
     CDFW must report injured or dead marine mammals.

Comments and Responses

    A notice of NMFS' proposal to issue a Renewal IHA to CDFW was 
published in the Federal Register on August 1, 2023 (88 FR 50113). That 
notice either

[[Page 62348]]

described, or referenced descriptions of, CDFW's activity, the marine 
mammal species that may be affected by the activity, the anticipated 
effects on marine mammals and their habitat, estimated amount and 
manner of take, and proposed mitigation, monitoring and reporting 
measures. NMFS received no public comments.

Determinations

    The 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 
CDFW's activities would have a negligible impact on the affected 
species or stock 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 concluded that there is no new information suggesting that 
our analysis or findings should change from those reached for 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) CDFW'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.

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 
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 
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 determined that the issuance of the initial IHA 
qualified to be categorically excluded from further NEPA review. NMFS 
has determined that the application of this categorical exclusion 
remains appropriate for this Renewal IHA.

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.

Renewal

    NMFS has issued a Renewal IHA to CDFW for the take of marine 
mammals incidental to conducting construction activities associated 
with Phase III of the Elkhorn Slough Tidal Marsh Restoration Project in 
Monterey County, CA, from September 16, 2023, through September 15, 
2024.

    Dated: September 6, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-19523 Filed 9-8-23; 8:45 am]
BILLING CODE 3510-22-P