Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Sand Island Pile Dikes Repairs on the Columbia River, 82986-82990 [2024-23681]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 199 (Tuesday, October 15, 2024)]
[Notices]
[Pages 82986-82990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23681]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XE353]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Sand Island Pile Dikes Repairs on 
the Columbia River

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

ACTION: Notice; issuance of a modified incidental harassment 
authorization.

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[[Page 82987]]

SUMMARY: In accordance with the regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that NMFS has issued a modified incidental harassment authorization 
(IHA) to U.S. Army Corps of Engineers (USACE) to incidentally harass 
marine mammals during construction associated with Sand Island Pile 
Dikes Repairs on the Columbia River.

DATES: This modified IHA is effective through July 31, 2025.

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-army-corps-engineers-sand-island-pile-dikes-repairs-columbia. In case of problems accessing these documents, 
please call the contact listed below.

FOR FURTHER INFORMATION CONTACT: Robert Pauline, 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, 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.

History of Request

    On March 4, 2022, NMFS received a request from the USACE for two 
consecutive IHAs to take marine mammals incidental to the Sand Island 
Pile Dikes Repairs Project on the Columbia River over the course of 2 
years. The USACE's request was for take of seven species of marine 
mammals by Level B harassment and, for a subset of these species 
(harbor seal (Phoca vitulina) and harbor porpoise (Phocoena phocoena)), 
Level A harassment. On August 22, 2023, NMFS published a Federal 
Register notice (87 FR 51346) announcing the issuance of the IHAs, 
which were valid for year 1 from August 1, 2023 through July 31, 2024 
and for year 2 from August 1, 2024 through July 31, 2025.
    On August 19, 2024, NMFS received a request from the USACE to 
modify the year 2 IHA. Following receipt of additional information, 
NMFS accepted the request on September 11, 2024. The original year 2 
IHA authorized, by Level B harassment only, six takes of humpback whale 
(from the California/Oregon/Washington stock designated at the time; 
Megaptera novaeangliae) and two takes from the West Coast Transient 
stock of killer whale (Orcinus orca).
    Sightings of humpback whales have increased in the work area from 
previous years. Humpback whale feeding groups have begun utilizing the 
mouth of the Columbia River as foraging ground. The USACE had recorded 
four potential takes of humpback whale by Level B harassment as of 
September 11, 2024 after 24 days of in-water pile driving work, with 80 
in-water days remaining. In addition, there have been several recent 
sightings of transient killer whales in the area. These sightings 
represent a change to occurrence data considered by NMFS and which 
informed the original take estimates. Therefore, the USACE is 
requesting a modification to the year 2 authorization to increase the 
authorized take of humpback whale and killer whale, by Level B 
harassment only.

Description of the Activity and Anticipated Impacts

    There are no changes to the specified activity or to the 
mitigation, monitoring, and reporting requirements as described for the 
original year 2 IHA (87 FR 39481, July 1, 2022). Please see the 
additional relevant documents related to the issuance of the initial 
IHA, including the USACE's application and the notice of issuance of 
the IHA (87 FR 51346, August 22, 2022) (available at https://www.fisheries.noaa.gov/action/incidental-take-authorization-army-corps-engineers-sand-island-pile-dikes-repairs-columbia) for more detailed 
descriptions.

Detailed Description of the Action

    A detailed description of the construction activities can be found 
in the aforementioned documents associated with the issuance of the 
initial year 2 IHA. The location and general nature of the activities 
are identical to those described in the previous documents. As of 
September 11, 2024, 24 days in-water work had been completed out of a 
projected total of 104 days.

Description of Marine Mammals

    A description of the marine mammals in the area of the activities 
can be found in these previous documents, which remains applicable to 
this modified IHA as well. In addition, NMFS has reviewed the draft 
2023 Stock Assessment Reports (SARs; Young et al., 2023; available at: 
https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports), information on relevant 
Unusual Mortality Events, and recent scientific literature, and 
incorporated that into table 1 below.
    Table 1 lists all species or stocks for which take is expected and 
authorized to be 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. For some species, this geographic area may extend 
beyond U.S. waters. All managed stocks in this region are assessed in

[[Page 82988]]

NMFS' Alaska Marine Mammal SARs. All values presented in table 1 are 
the most recent available at the time of publication (including from 
the draft 2023 SARs) and are available online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. Note that the stock abundances of humpback whale, 
harbor porpoise, and Steller sea lion have updated since the Federal 
Register notice of issuance was published (87 FR 51346, August 22, 
2022). The updates figures are reflected in table 1.

                          Table 1--Species Likely Impacted by the Specified Activities
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                                                                             Stock abundance
                                                                  ESA/MMPA   (CV, Nmin, most
         Common name           Scientific name       Stock         status;        recent         PBR    Annual M/
                                                                  strategic     abundance                SI \3\
                                                                  (Y/N) \1\    survey) \2\
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                      Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Balaenopteridae
 (rorquals):
    Humpback whale...........  Megaptera        Central America/ E, D, Y     1,494 (0.171,         3.5      14.9
                                novaeangliae.    Southern                     1,284, 2021).
                                                 Mexico--Califo
                                                 rnia/Oregon/
                                                 Washington.
                                                Mainland         T, D, Y     3,477 (0.101,          43        22
                                                 Mexico--CA/OR/               3,185, 2018).
                                                 WA.
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                        Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
----------------------------------------------------------------------------------------------------------------
Family Delphinidae:
    Killer Whale.............  Orcinus orca...  West Coast       -, -, N     349 \4\ (N/A,         3.5       0.4
                                                 Transient.                   349, 2018).
Family Phocoenidae
 (porpoises):
    Harbor Porpoise..........  Phocoena         Northern Oregon/ -, -, N     22,074 (0.391,        161       3.2
                                phocoena.        Washington                   16,068, 2024).
                                                 Coast.
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                                     Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals
 and sea lions):
    California Sea Lion......  Zalophus         U.S............  -, -, N     257,606 (N/A,      14,011      >321
                                californianus.                                233,515, 2014).
    Steller Sea Lion.........  Eumetopias       Eastern........  -, -, N     36,308 (N/A,        2,592       112
                                jubatus.                                      36,308, 2022)
                                                                              \5\.
Family Phocidae (earless
 seals):
    Harbor Seal..............  Phoca vitulina.  Oregon/          -, -, N     24,732 \6\            UND      10.6
                                                 Washington                   (UNK, UNK,
                                                 Coast.                       1999).
    Northern Elephant Seal...  Mirounga         California       -, -, N     187,386 (N/A,       5,122      13.7
                                angustirostris.  Breeding.                    85,369, 2013).
----------------------------------------------------------------------------------------------------------------
\1\ 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.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region. CV is coefficient of variation; Nmin is the minimum
  estimate of stock abundance.
\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 mortality/serious injury (M/SI)
  often cannot be determined precisely and is in some cases presented as a minimum value or range.
\4\ Based on counts of individual animals identified from photo-identification catalogues. Surveys for abundance
  estimates of these stocks are conducted infrequently.
\5\ Nest is best estimate of counts, which have not been corrected for animals at sea during abundance surveys.
  Estimates provided are for the U.S. only.
\6\ The abundance estimate for this stock is greater than 8 years old and is therefore not considered current.
  PBR is considered undetermined for this stock, as there is no current minimum abundance estimate for use in
  calculation. We nevertheless present the most recent abundance estimates, as these represent the best
  available information for use in this document.

Humpback Whales

    On September 8, 2016, NMFS divided the once single species into 14 
distinct population segments (DPS) under the ESA, removed the species-
level listing as endangered, and, in its place, listed four DPSs as 
endangered and one DPS as threatened (81 FR 62259, September 8, 2016). 
The remaining nine DPSs were not listed. There are four DPSs in the 
North Pacific, including Western North Pacific and Central America, 
which are listed as endangered, Mexico, which is listed as threatened, 
and Hawaii, which is not listed.
    The 2022 Pacific SARs described a revised stock structure for 
humpback whales which modifies the previous stocks designated under the 
MMPA to align more closely with the ESA-designated DPSs (Caretta et 
al., 2023; Young et al., 2023). Specifically, the three previous North 
Pacific humpback whale stocks (Central and Western North Pacific stocks 
and a CA/OR/WA stock; take of humpback whales authorized through the 
original Year 2 IHA was from the latter stock) were replaced by five 
stocks, largely corresponding with the ESA-designated DPSs. These 
include Western North Pacific and Hawaii stocks and a Central America/
Southern Mexico-CA/OR/WA stock (which corresponds with the Central 
America DPS). The remaining two stocks, corresponding with the Mexico 
DPS, are the Mainland Mexico-CA/OR/WA and Mexico-North Pacific stocks 
(Caretta et al., 2023; Young et al., 2023). The former stock is 
expected to occur along the west coast from California to southern 
British Columbia, while the latter stock may occur across the Pacific, 
from northern British Columbia through the Gulf of Alaska and Aleutian 
Islands/Bering Sea region to Russia. Only the Mainland Mexico-CA/OR/WA 
and Mexico-North Pacific stocks are expected to be affected by the 
specified activity, and take previously authorized for the CA/OR/WA 
stock is here reallocated to these two newly designated stocks, as 
discussed below.
    We have determined that no new information affects our original 
analysis of potential impacts under the initial Year 2 IHA.

Potential Effects 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 issuance of the original year 2 IHA, which remains 
applicable to the modification of the IHA. NMFS is not

[[Page 82989]]

aware of new information regarding potential effects.

Estimated Take

    A detailed description of the methods and inputs used to estimate 
authorized take for the specified activities are found in the Federal 
Register notice of proposed IHAs (87 FR 3948, July 1, 2022). The types 
and sizes of piles, ensonified areas and source levels, and methods of 
pile driving remain unchanged from the IHA.
    The modification addresses USACE's concerns that the ongoing 
construction activities could result in exceeding levels of authorized 
take of humpback whale and killer whale. Sightings of humpback whales 
have increased in the project area from previous years. Humpback whale 
feeding groups have begun utilizing the mouth of the Columbia River as 
foraging ground, arriving in the lower Columbia estuary as early as 
mid-June, and have been observed as late as mid-November with whale 
peak abundance coinciding with the peak abundance of forage fish in 
mid-summer. Humpback whales were observed in the immediate vicinity of 
West and East Sand Islands in late summer and fall of 2015 and 2016. 
They were also observed in the area in 2017 and 2019, but their 
presence was not documented in 2018. Under the 2023 year 1 IHA, no 
humpback whales were detected in 34 days of pile driving.
    According to Wade et al. (2021), the probabilities that humpback 
whales encountered in Oregon and California (i.e., south of the 
Columbia River) belong to various DPSs are as follows: Mexico DPS, 58 
percent; and Central America DPS, 42 percent. The probabilities that 
humpback whales found in Washington and Southern British Columbia 
waters (i.e., north of the Columbia River) belong to various DPSs are 
as follows: Hawai'i DPS, 69 percent; Mexico DPS, 25 percent; and 
Central America DPS, 6 percent (Wade et al., 2021). In this area, these 
DPSs correspond with the newly designated Mainland Mexico-CA/OR/WA, 
Central America/Southern Mexico-CA/OR/WA, and Hawaii stocks, 
respectively. Since the Columbia River is considered the dividing line 
between these two areas, the correct proportion of humpback whales 
likely to be encountered is unclear, i.e., whether the probabilities 
are closer to those assumed for the regions north or south of the 
Columbia River. NMFS conservatively assumes here that take of humpback 
whale would be the same as at a location south of the Columbia River, 
with 58 percent likely from the Mexico stock and 42 percent from the 
Central America stock.
    The USACE has recorded four takes of humpback whale by Level B 
harassment as of September 11, 2024 after 24 days of in-water pile 
driving work which equates to a daily take rate of 0.17 animals/day. 
NMFS had originally authorized six takes by Level B harassment. With 80 
days in-water work remaining, the projected take at the rate described 
above would result in 14 takes in addition to the 4 takes already 
recorded. NMFS is further authorizing an additional 10 takes by Level B 
harassment to ensure adequate consideration of likely take in light of 
the present increased occurrence of humpback whales. Therefore, NMFS 
has authorized a total of 28 humpback whale takes by Level B 
harassment.
    The USACE also requested an increase in authorized take by Level B 
harassment of killer whales. NMFS had authorized two takes by Level B 
harassment under the original year 2 IHA. Under the 2023 year 1 IHA, no 
killer whales were detected in 34 days of pile driving according to the 
monitoring report submitted by the USACE. Based on recent anecdotal 
sightings, the USACE was concerned about potentially exceeding 
authorized take. The USACE felt that killer whales are more likely to 
enter into the project than previously considered. NMFS agreed with 
this assessment and modified the original IHA accordingly. The modal 
group sizes for transient killer whales ranges from three to four 
(Shields et al. 2018). NMFS assumed take of 2 groups of 4 in addition 
to the 2 already authorized in the year 2 IHA for a total of 10 takes 
by Level B harassment.
    Table 2 shows the authorized take of all marine mammals by Level A 
and Level B harassment including revisions to authorized take of 
humpback whale and killer whale.

         Table 2--Authorized Take of Marine Mammals by Level A and Level B Harassment by Year, by Species and Stock and Percent of Take by Stock
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                                              Authorized      Authorized
                  Species                    take by Level   take by Level  Total proposed              Stock                  Stock        Percent of
                                             A harassment    B harassment        take                                        abundance         stock
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Year 2:
    Humpback whale \1\....................               0              12              12  Central America/Southern               1,494           <0.01
                                                                                             Mexico--California/Oregon/
                                                                                             Washington.
                                                         0              16              16  Mainland Mexico--CA/OR/WA...           3,477            0.46
    Killer whale..........................               0              10              10  West Coast Transient........             349            0.28
    Harbor porpoise.......................              27             163             190  Northern Oregon/Washington            22,074            0.86
                                                                                             Coast.
    California sea lion...................               0          23,421          23,421  U.S.........................         257,606            9.09
    Steller sea lion......................               0          29,502          29,502  Eastern.....................          36,308           81.25
    Harbor seal...........................              54           5,361           5,415  Oregon/Washington Coast.....          24,732           21.89
    Northern elephant seal................               0               6               6  California Breeding.........         187,363           <0.01
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\1\Humpback whales from the Central America/Southern Mexico-CA/OR/WA stock and the Mainland Mexico-CA/OR/WA stock are likely to occur in the project
  area in the respective percentages of 42 and 58 percent (Wade et al. 2021).

Description of Mitigation, Monitoring and Reporting Measures

    The mitigation, monitoring and reporting measures are identical to 
those included in the initial year 2 IHA and remain relevant for this 
modified IHA. These can be found in the documents supporting the 
issuance of the two consecutive final IHAs.
Determinations
    With the exception of the revised take numbers for humpback whale 
and killer whale, by Level B harassment only, the USACE's in-water 
construction activities as well as mitigation and reporting 
requirements are unchanged from those in the year 2 IHA. The effects of 
the activity on the affected species and stocks remain unchanged.
    The additional takes by Level B harassment would be due to 
potential behavioral disturbance and potential temporary threshold 
shift (TTS). No serious injury or mortality is anticipated given the 
nature of the activity and measures designed to minimize the 
possibility of injury to marine mammals. The potential for harassment 
is minimized through the construction

[[Page 82990]]

method and the implementation of the planned mitigation measures (see 
Description of Mitigation, Monitoring and Reporting Measures section).
    The USACE's pile driving project precludes the likelihood of 
serious injury or mortality. For all species and stocks, take would 
occur within a limited, confined area of the stock's range. Level A and 
Level B harassment would be reduced to the level of least practicable 
adverse impact through use of mitigation measures described herein.
    The additional authorized takes of humpback whale and killer whale 
represent a minor increase in the percent of stock taken that was 
authorized in the initial year 2 IHA, and the anticipated impacts are 
identical to those described in the Federal Register notice of issuance 
of final IHA (87 FR 51346, August 22, 2022). The increases in 
authorized takes by Level B harassment for humpback and killer whale 
are extremely small when compared to stock abundance. The increase in 
authorized take of humpback and killer whale by Level B harassment is 
less than 0.01 percent for the Central America/Southern Mexico DPS and 
no greater than 0.46 percent for the Mainland Mexico DPS. Therefore, 
this activity will not cause effects on annual rates of recruitment or 
survival. We have determined that the impacts resulting from this 
activity are not expected to adversely affect annual rates of 
recruitment or survival for humpback whale, killer whale or any other 
species where NMFS has authorized take.
    Based on the information 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) the USACE'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
    Section 7(a)(2) of the Endangered Species Act of 1973 (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, in this case with the West Coast 
Regional Office.
    As part of the original IHA, NMFS authorized incidental take of 
humpback whales from the California/Oregon/Washington stock that was 
designated at the time, and which included whales from the ESA-listed 
Mexico and Central America DPSs. The effects of this Federal action 
were adequately analyzed in the NMFS West Coast Region's Biological 
Opinion and Magnuson-Stevens Fishery Conservation and Management Act 
Essential Fish Habitat Response for the Sand Island Pile Dike Repair 
Project, dated June 14, 2022, which concluded that the action is not 
likely to adversely affect humpback whales from the Mexico and Central 
America DPSs or their designated critical habitat. This modification of 
the IHA does not change the existing analysis and, therefore, the prior 
determination remains unchanged.
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.
    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 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 determined 
that the issuance of the modification of the IHA continues to qualify 
to be categorically excluded from further NEPA review.
Authorization
    NMFS has issued a modified IHA to the USACE for conducting 
construction activities associated Sand Island Dikes Repair Project on 
the Columbia River that includes the previously explained mitigation, 
monitoring, and reporting requirements.

    Dated: October 8, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2024-23681 Filed 10-11-24; 8:45 am]
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