Notice2021-11915
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Elkhorn Slough Tidal Marsh Restoration, Phase II in Monterey County, California
Primary source
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Published
June 8, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS received a request from the California Department of Fish and Wildlife (CDFW) for the Renewal of their currently active incidental harassment authorization (IHA) to take marine mammals incidental to the Elkhorn Slough Tidal Marsh Restoration Project (Phase II) which includes the excavation and movement of soil with heavy machinery for marsh restoration in Monterey County, California. These activities consist of activities that are covered by the current authorization but will not be completed prior to its expiration. Pursuant to the Marine Mammal Protection Act, prior to issuing the currently active IHA, NMFS requested comments on both the proposed IHA and the potential for renewing the initial authorization if certain requirements were satisfied. The Renewal requirements have been satisfied, and NMFS is now providing an additional 15-day comment period to allow for any additional comments on the proposed Renewal not previously provided during the initial 30-day comment period.
Full Text
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<title>Federal Register, Volume 86 Issue 108 (Tuesday, June 8, 2021)</title>
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[Federal Register Volume 86, Number 108 (Tuesday, June 8, 2021)]
[Notices]
[Pages 30412-30418]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-11915]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB129]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Elkhorn Slough Tidal Marsh
Restoration, Phase II in Monterey County, California
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; request for comments on proposed Renewal incidental
harassment authorization (IHA).
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SUMMARY: NMFS received a request from the California Department of Fish
and Wildlife (CDFW) for the Renewal of their currently active
incidental harassment authorization (IHA) to take marine mammals
incidental to the Elkhorn Slough Tidal Marsh Restoration Project (Phase
II) which includes the excavation and movement of soil with heavy
machinery for marsh restoration in Monterey County, California. These
activities consist of activities that are covered by the current
authorization but will not be completed prior to its expiration.
Pursuant to the Marine Mammal Protection Act, prior to issuing the
currently active IHA, NMFS requested comments on both the proposed IHA
and the potential for renewing the initial authorization if certain
requirements were satisfied. The Renewal requirements have been
satisfied, and NMFS is now providing an additional 15-day comment
period to allow for any additional comments on the proposed Renewal not
previously provided during the initial 30-day comment period.
DATES: Comments and information must be received no later than June 23,
2021.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service. Written comments should be submitted
via email to <a href="/cdn-cgi/l/email-protection#0f465b5f216c607d6c607d6e614f61606e6e21686079"><span class="__cf_email__" data-cfemail="642d30344a070b16070b16050a240a0b05054a030b12">[email protected]</span></a>.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. Attachments to comments will be
accepted in Microsoft Word or Excel or Adobe PDF file formats only. All
comments received are a part of the public record and will generally be
posted online at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> without change. All
personal identifying information (e.g., name, address) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
confidential business information or otherwise sensitive or protected
information.
FOR FURTHER INFORMATION CONTACT: Kim Corcoran, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application, 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: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D)
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon request, the incidental, but not
intentional, taking of small numbers of marine mammals by U.S. citizens
who engage in a specified activity (other than commercial fishing)
within a specified geographical region if certain findings are made and
either regulations are proposed or, if the taking is limited to
harassment, a notice of a proposed incidental take authorization 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 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 one year for each reauthorization. In the notice of proposed IHA
for the initial authorization, NMFS described the circumstances under
which we would consider issuing a Renewal for this activity, and
requested public comment on a potential Renewal under those
[[Page 30413]]
circumstances. Specifically, on a case-by-case basis, NMFS may issue a
one-time one-year Renewal IHA following notice to the public providing
an additional 15 days for public comments when (1) up to another year
of identical or nearly identical, or nearly identical, activities as
described in the Detailed Description of Specified Activities section
of the initial IHA issuance notice is planned or (2) the activities as
described in the Detailed Description of Specified Activities 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 one year from expiration of
the initial IHA).
(2) The request for renewal must include the following:
<bullet> 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).
<bullet> 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: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>. Any
comments received on the potential Renewal, along with relevant
comments on the initial IHA, have been considered in the development of
this proposed IHA Renewal, and a summary of agency responses to
applicable comments is included in this notice. NMFS will consider any
additional public comments prior to making any final decision on the
issuance of the requested Renewal, and agency responses will be
summarized in the final notice of our decision.
The NDAA (Pub. L. 108-136) removed the ``small numbers'' and
``specified geographical region'' limitations indicated above and
amended the definition of ``harassment'' as it applies to a ``military
readiness activity.''
National Environmental Policy Act
The current action is consistent with categories of activities
identified in Categorical Exclusion B4 (incidental harassment
authorizations with no anticipated serious injury or mortality) of the
Companion Manual for NOAA Administrative Order 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has preliminarily determined
that the issuance of the proposed renewal qualifies to be categorically
excluded from further NEPA review just as the initial IHA did.
History of Request
On March 13, 2020, NMFS issued an IHA to CDFW to take marine
mammals incidental to construction activities associated with the
second phase of the tidal marsh restoration project in Elkhorn Slough,
California (85 FR 14640; March 13, 2021), effective from June 01, 2020
through May 31, 2021. On May 11, 2021, NMFS received an application for
the Renewal of that initial IHA. Although the request was not received
60 days prior to the expiration date of the initial IHA, the applicant
has been informed that the Renewal may not be issued until 60 days past
the May 11, 2021 submission date. As described in the application for
Renewal IHA, the activities for which incidental take is requested
consist of activities that are covered by the initial authorization but
will not be completed prior to its expiration. As required, the
applicant also provided a preliminary monitoring report (available at
<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-tidal-marsh-restoration-project-elkhorn-slough-phase-ii-2020">https://www.fisheries.noaa.gov/action/incidental-take-authorization-tidal-marsh-restoration-project-elkhorn-slough-phase-ii-2020</a>) 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. However, NMFS did note that there were a few
instances where work continued during the pupping season during what
was noted as foggy or hard to see conditions. Despite the low
visibility, there were no unexpected changes in behavior noted during
the activity. These instances were rare and CDFW has been reminded to
shut down activity during times where monitoring cannot be efficiently
implemented, especially during pupping season (March-July).
Description of the Specified Activities and Anticipated Impacts
CDFW is unable to complete all of the planned work under the
initial 2020 IHA for Phase II of the Elkhorn Slough Tidal Marsh
Restoration Project. The initial IHA planned to restore 58 acres of
saltmarsh habitat in two areas, Minhoto-Hester Restoration Area
(subareas M4a-b, M5, and M6) and the Seal Bend Restoration Area (S1-S4)
(Figure 1). To date, the majority of earthwork at the Minhoto-Hester
Restoration Area has been completed, including earthwork in subareas
M4a-b and M5, however outstanding work in subareas M5 and M6 will not
be completed before the May 31, 2021 IHA expiration date. Therefore,
CDFW has requested a Renewal IHA to authorize the take of marine
mammals for a subset of the initially planned work that has not been
completed which will include the outstanding work in subareas M5 and
M6. A separate IHA application will be submitted by CDFW for the work
at the Seal Bend Restoration Area which has not been initiated to date,
and is expected to start later in the year. Of note, the work in the
Minhoto-Hester Restoration Area has taken more days to conduct than
initially expected, but the completion of work in that Area is still
expected to occur within the total number of workdays contemplated in
the initial IHA.
Anticipated impacts would include only Level B harassment of marine
mammals (though fewer, since the duration of the proposed activity is
shorter). CDFW's request is for one species of pinniped by Level B
harassment: Harbor seal (Phoca vitulina richardii). Monitoring results
from the 2020 restoration activities indicate that observed exposures
above Level B harassment thresholds were well below the amount
authorized in associated with the amount of work conducted to
[[Page 30414]]
date (see monitoring report in renewal request letter). Thus, the
subset of Level B harassment take remaining from that authorized under
the 2020 IHA will be sufficient to cover the remaining 2021 restoration
work at the Minhoto-Hester Restoration Area.
[GRAPHIC] [TIFF OMITTED] TN08JN21.014
Detailed Description of the Activity
As discussed earlier, this is a Renewal to complete the subset of
the activity not completed under the initial IHA (85 FR 14640; March
13, 2020). Due to construction delays attributed to severe weather in
the winter of 2020 which limited the ability for heavy equipment to
access and mobilize onsite in addition to smaller construction crew
sizes than anticipated, only 118 days of work occurred between August
2020 and April 2021 of the 180 days anticipated and authorized for this
project. The completed work to date includes the majority of earthwork
at Minhoto-Hester Restoration Area in subareas M4a-b, and M5. As of the
submission of their Renewal request, 62 days of work remains at the
Minhoto-Hester Restoration Area which will occur between the time the
Renewal is issued and September 2021. The applicant requests
authorization for the work remaining as of June 1, 2021 which includes
placement of additional fill in subareas M5 and M6 (see Table 1) to
raise the subsided marsh plain; excavation of tidal channels in all
subareas; and rerouting tidal flow from the existing tidal channel
adjacent to Yampah Marsh to the new tidal channel that bisects subareas
M4b and M5. All of the remaining work is consistent with work described
in the initial IHA. Table 1 (same as Table 1 from application and
initial proposed) presents the acreages and extents of proposed fill
within each marsh subarea, as well as the volume of fill required for
each marsh subarea to be restored. The upland borrow area, onsite,
would be used as the fill source. The project would rely primarily on
natural vegetation recruitment in the restored marsh areas.
This Renewal request is identical to that of the 2020 IHA, in that
it is comprised of a subset of the work that was covered in the initial
IHA. 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. The proposed Renewal would be effective until May
31, 2022 and does not authorize activities related to restoration work
in the Seal Bend Restoration Area as a subsequent IHA application will
be submitted by CDFW for such activities at a later date.
The mitigation and monitoring will be identical to that of the 2020
IHA. A detailed description of the restoration activities for which
take is proposed may be found in the notices of the proposed (84 FR
72308; December 31, 2019) and the final IHAs (85 FR 14640; March 13,
2020) for the 2020 authorization. All documented associated with the
2020 IHA (i.e., the IHA application, proposed IHA, final IHA, public
comments, monitoring reports, etc.) can be found on NMFS's website,
<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-tidal-marsh-restoration-project-elkhorn-slough-phase-ii-2020">https://www.fisheries.noaa.gov/action/incidental-take-authorization-tidal-marsh-restoration-project-elkhorn-slough-phase-ii-2020</a>.
[[Page 30415]]
Table 1--Volume of Fill Required in Each Sub-Area in Minhoto-Hester Restoration Area
----------------------------------------------------------------------------------------------------------------
Estimated
Subarea Area (acres) Fill area fill volume
(acres) (CY)
----------------------------------------------------------------------------------------------------------------
Sub-area M4a.................................................... 2.5 1.0 46,880
Sub-area M4b.................................................... 9.7 7.3 44,516
Sub-area M5..................................................... 10.2 7.8 57,466
Sub-area H6..................................................... 6.8 5.5 33,792
-----------------------------------------------
Total....................................................... 29.2 21.6 182,654
----------------------------------------------------------------------------------------------------------------
Source: ESA 2014a.
\1\ Volumes are mid-range estimates; actual volumes may be higher or lower.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which authorization of take is proposed here, including information
on abundance, status, distribution, and hearing, may be found in the
notices of the proposed and final IHAs for the initial authorization.
NMFS has reviewed the monitoring data from the initial IHA, recent
draft Stock Assessment Reports, information on relevant Unusual
Mortality Events, and other scientific literature, and determined that
neither this nor any other new information affects which species or
stocks have the potential to be affected or the pertinent information
in the Description of the Marine Mammals in the Area of Specified
Activities contained in the supporting documents for the initial IHA.
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
proposed here may be found in the notices of the proposed and final
IHAs for the initial authorization. NMFS has reviewed the monitoring
data from the initial IHA, recent draft Stock Assessment Reports,
information on relevant Unusual Mortality Events, and other scientific
literature, and determined that neither this nor any other new
information affects our initial analysis of impacts on marine mammals
and their habitat.
Estimated Take
A detailed description of the methods and inputs used to estimate
take for the specified activity are found in the final IHA notice for
the initial authorization. Specifically, the activity, days of
operation, and marine mammal density data applicable to this
authorization remain unchanged from the previously issued IHA.
Similarly, the stock taken, method of take, and type of take remain
unchanged from the previously issued IHA. The number of Level B
harassment takes will be fewer since the proposed Renewal is for a
subset of the days which can be seen in Table 2. The authorized take
was determined by multiplying the daily take estimate (37.53) by the
number of construction days remaining (62 days) at Minhoto-Hester
Restoration Area and rounding up (Table 2).
Table 2--Calculated Take and Percentage of Stock Exposed
----------------------------------------------------------------------------------------------------------------
Authorized take
Species ----------------------------------------------------- % population
Level B Level A \4\
----------------------------------------------------------------------------------------------------------------
Pacific Harbor Seal........................ 417 \1\ max seals/day (9 percent 0 1.3
\2\) (62 days \3\) = 2,327.
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\1\ Maximum number of seals observed/day between January 2018 and April 2019 by Reserve Otter Monitoring
Project.
\2\ % Take from Phase I.
\3\ Number of construction days remaining in Minhoto-Hester Restoration Area.
\4\ Data from U.S. Pacific Marine Mammal Stock Assessments: 2015 (Carretta et al., 2015).
All estimates are considered conservative. Construction activities
will occur in sections. Noise from construction activities in more
southern sections may thus cause fewer disturbances to seals given
their distance from seal haul outs (approximately 100 m and greater).
There are unlikely to be 417 animals in the project area on any given
day. Not all seals that previously used the haul outs within the
footprint of the construction are expected use the haul outs just
outside the project based on observations from Phase I of the project.
Some seals may seek alternative haul out habitat in other parts of
Elkhorn Slough.
Description of Proposed Mitigation, Monitoring and Reporting Measures
The proposed mitigation, monitoring, and reporting measures
included as requirements in this authorization are identical to those
included in the 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 (84 FR
72308; December 31, 2019) remains accurate. The following measures are
proposed for this renewal:
Timing Restrictions--All work must be conducted during daylight
hours when visual monitoring of marine mammals can be implemented. If
environmental conditions deteriorate such that marine mammals within
the entire shutdown zone would not be visible (e.g., fog, heavy rain),
construction must be delayed until the PSO is confident marine mammals
within the shutdown zone could be detected.
Visual Monitoring--Required monitoring must be conducted by
dedicated, trained, NMFS-approved PSO(s). PSOs shall establish a Level
B harassment zone within 300 m of all construction activities. When
construction activities occur either, (1) in water or (2); within the
boundaries of the two tidal restoration areas, Minhoto-Hester and Seal
Bend identified in
[[Page 30416]]
Figure 1, monitoring must occur every other day when work is occurring.
When construction activities occur near the ``borrow'' areas where
marsh fill material is gathered, monitoring must occur every fifth day
when work is occurring, unless the borrow area is more than 300 m from
any area where marine mammals have been observed. Occurrence of marine
mammals within the Level B harassment zone must be communicated to the
construction lead to prepare for the potential shutdown when required.
Pre-construction clearance and Ramp-up--A 30-minute pre-clearance
observation period must occur prior to the start of ramp-up and
construction activities. CDFW must adhere to the following pre-
clearance and ramp-up requirements: (i) Construction activities must
not be initiated if any marine mammal is within 10 m of planned
operations. If a marine mammal is observed within 10 m of planned
operations during the 30-minute pre-clearance period, ramp-up must not
begin until the animal(s) has been observed exiting the zones or until
an additional time period has elapsed with no further sightings (15
minutes for small odontocetes and pinnipeds and 30 minutes for all
other species), (ii) The construction contractor must begin
construction activities gradually each day (e.g., ramp up by moving
around the project area and starting equipment sequentially).
Shutdown Requirements--For heavy machinery work, if a marine mammal
comes within 10 m of such operations, operations must cease and vessels
shall reduce speed to the minimum level required to maintain steerage
and safe working conditions.
Pupping Season--Construction activities may not be initiated: (1)
Within 300 m of a mom/pup pair that is hauled out, or (2) 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 one week old (neonate) comes within 20 m
of where heavy machinery is working, construction activities in that
area must be shutdown or delayed until the pup has left the area. In
the event that a pup less than one week old remains within those 20 m,
NMFS will be consulted to determine the appropriate course of action.
Activities must cease if a marine mammal species for which take was
not authorized, or a species for which authorization was granted but
the authorized number of takes have been met, is observed by Protected
Species Observers (PSOs) approaching or within the Level B harassment
zone. Activities must not resume until the animal is confirmed to have
left the area.
Construction Activities--A NMFS approved PSO must conduct
biological resources awareness training for construction personnel. The
awareness training will be provided to brief construction personnel on
identification of marine mammals (including neonates) and the need to
avoid and minimize impacts to marine mammals. If new construction
personnel are added to the project, the contractor shall ensure that
the personnel receive the mandatory training before starting work.
Construction activities must not be initiated if any marine mammal
is within 10 m of planned operations. If a marine mammal is observed
within 10 m of planned operations during the 30-minute pre-clearance
period, ramp-up must not begin until the animal(s) has been observed
exiting the zones or until an additional time period has elapsed with
no further sightings (15 minutes for small odontocetes and pinnipeds
and 30 minutes for all other species). Furthermore, the PSO will have
the authority to stop project activities if marine mammals approach or
enter the Level B Harassment Zone and/or at any time for the safety of
any marine mammals. Work will commence only with approval of the PSO to
ensure that no marine mammals are present in the Level B Harassment
Zone.
Ramp Up--To reduce the risk of potentially startling marine mammals
with a sudden intensive sound, the construction contractor must begin
construction activities gradually each day by moving around the project
area and starting machinery one at a time.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has preliminarily
determined that the authorized mitigation measures provide the means
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
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density).
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas).
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors.
<bullet> How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks.
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat).
<bullet> Mitigation and monitoring effectiveness.
PSOs--PSOs shall be used to detect, document, and minimize impacts
to marine mammals, as well as, communicate with and instruct relevant
construction crew with regard to the presence of marine mammals and
mitigation requirements. Independent PSOs (i.e., not construction
personnel) who have no other assigned tasks during monitoring periods
must be used. Biological monitoring will begin 30 minutes before work
begins and will continue until 30 minutes after work is completed each
day.
PSOs will be placed at the best vantage point(s) practicable to
monitor for marine mammals within the Level B harassment zone, defined
above. If multiple construction activities occur simultaneously, enough
PSOs must be on duty to monitor all Level B Harassment zones.
Qualifications for PSOs for visual monitoring include:
<bullet> Visual acuity in both eyes (correction is permissible)
sufficient for discernment of harbor seals on land or in the water with
ability to estimate target size and distance; use of binoculars may be
necessary to correctly identify the target.
<bullet> Successfully attained a bachelor's degree from an
accredited college or university with a major in one of the
[[Page 30417]]
natural sciences and a minimum of 30 semester hours or equivalent in
the biological sciences and at least one undergraduate course in math
or statistics. The educational requirements may be waived if the PSO
has acquired the relevant skills through alternate experience. Requests
for such a waiver must include written justification. Alternate
experience that may be considered includes, but is not limited to (1)
secondary education and/or experience comparable to PSO duties; (2)
previous work experience conducting academic, commercial, or
government-sponsored marine mammal surveys; or (3) previous work
experience as a PSO; the PSO should demonstrate good standing and
consistently good performance of PSO duties.
<bullet> Experience and ability to conduct field observations and
collect data according to assigned protocols (this may include academic
experience).
<bullet> Experience or training in the field identification of
marine mammals, including the identification of behaviors.
<bullet> Sufficient training, orientation, or experience with the
construction operation to provide for personal safety during
observations.
<bullet> Writing skills sufficient to prepare a report of
observations including but not limited to the number and species of
marine mammals observed; dates and times when construction activities
were conducted; dates and times when construction activities were
suspended to avoid potential incidental injury from construction sound
or visual disturbance of marine mammals observed; and marine mammal
behavior.
<bullet> Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
(a) PSOs must be provided with the equipment necessary to
effectively monitor for marine mammals in order to record species, the
distance from species' location to the construction activities,
behaviors, and responses to construction activities.
(b) The PSO must also conduct biological resources awareness
training for construction personnel. The awareness training will be
provided to brief construction personnel on identification of marine
mammals (including neonates) and the need to avoid and minimize impacts
to marine mammals. If new construction personnel are added to the
project, the contractor shall ensure that the personnel receive the
mandatory training before starting work. Monitoring requirements also
include:
Pre-Activity Monitoring--Pre and post construction daily censuses--
A census of marine mammals in the project area and the area surrounding
the project must be conducted 30 minutes prior to the beginning of
construction on monitoring days, and again 30 minutes after the
completion of construction activities. The following data will be
collected:
<bullet> Environmental conditions (weather condition, tidal conditions,
visibility, cloud cover, air temperature and wind speed
<bullet> Numbers of each marine mammal species spotted
<bullet> Location of each species spotted, including distance from
construction activity
<bullet> Status (in water or hauled out)
<bullet> Behavior
Hourly Counts--Conduct hourly counts of animals hauled out and in
the water within, at least, the Level B harassment zone.
Data collected must include:
<bullet> Numbers of each species
<bullet> Location, including whether inside the Level B harassment
zone; whether hauled out or in the water; and distance from
construction activities (+/-10 m)
<bullet> Time
<bullet> Tidal conditions
<bullet> Time construction activities start and end
<bullet> Primary construction activities occurring during the past hour
<bullet> Any noise or visual disturbance
<bullet> Number of mom/pup pairs and neonates observed
<bullet> Notable behaviors, including foraging, grooming, resting,
aggression, mating activity, and others
Notes should include any of the following information to the extent
it is feasible to record:
<bullet> Age-class
<bullet> Sex
<bullet> Unusual activity or signs of stress
<bullet> Any other information worth noting
Construction Related Reactions--Record reaction observed in
relation to construction activities including:
<bullet> Tally of each reaction
<bullet> Time of reaction
<bullet> Concurrent construction activity
<bullet> The assumed cause (whether related to construction activities
or not) shall be noted
<bullet> Disturbance must be recorded according to NMFS' three-point
pinniped disturbance scale (see Table 3)
<bullet> Location of animal during initial reaction and distance from
the noted disturbance
<bullet> Activity before and after disturbance
<bullet> Status (in water or hauled out) before and after disturbance
Table 3--Pinniped Behavioral Disturbance Code Reactions
------------------------------------------------------------------------
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.
------------------------------------------------------------------------
Reporting
A draft marine mammal monitoring report would be submitted to NMFS
within 90 days after the completion of pile driving and removal
activities, or 60 days prior to a requested date of issuance of any
future IHAs for projects at the same location, whichever comes first.
The report must include full documentation of methods, results, and
interpretation pertaining to all monitoring. It shall also include
marine mammal observations pre-activity, during-activity, and post-
activity of construction, and shall also provide descriptions of any
behavioral responses by marine mammals due to disturbance from
construction activities and a complete description of total take
estimate based on the number of marine
[[Page 30418]]
mammals observed during the course of construction. The report must
include an extrapolation of the estimated takes by Level B harassment
based on the number of observed disturbances within the Level B
harassment zone and the percentage of time the Level B harassment zone
was not monitored; i.e., 50 percent of time for the two restoration
areas and 80 percent of the time for the borrow and other areas. If
comments are received from the NMFS Office of Protected Resources on
the draft report, a final report shall be submitted to NMFS within 30
days thereafter following resolution of comments on the draft report
from NMFS. If no comments are received from NMFS, the draft report will
be considered to be the final report. This report must contain the
informational elements described above.
Comments and Responses
As noted previously, NMFS published a notice of a proposed IHA (84
FR 72308; December 31, 2019) and solicited public comments on both our
proposal to issue the initial IHA for CDFW's activity and on the
potential for a Renewal IHA, should certain requirements be met. All
public comments were addressed in the notice announcing the issuance of
the initial IHA (85 FR 14640; March 13, 2020). Below, we describe how
we have addressed, with updated information where appropriate, any
comments received that specifically pertain to the Renewal of the 2020
IHA.
Comment: The Commission reiterated programmatic recommendations
regarding NMFS' potential use of the renewal mechanism for 1 year IHAs;
that NMFS refrain from issuing renewals for any authorization and
instead use its abbreviated Federal Register notice process.
Response: In prior responses to comments about IHA Renewals (e.g.,
84 FR 52464; October 02, 2019 and 85 FR 53342, August 28, 2020), NMFS
has explained how the Renewal process, as implemented, is consistent
with the statutory requirements contained in section 101(a)(5)(D) of
the MMPA, provides additional efficiencies beyond the use of
abbreviated notices, and, further, promotes NMFS' goals of improving
conservation of marine mammals and increasing efficiency in the MMPA
compliance process. Therefore, we intend to continue implementing the
Renewal process.
Preliminary Determinations
NMFS has preliminarily 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 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 (ESA: 16.
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally whenever we propose to authorize take for
endangered or threatened species.
No incidental take of ESA-listed species is proposed for
authorization or expected to result from this activity in the Elkhorn
Slough Reserve. Therefore, NMFS has determined that formal consultation
under section 7 of the ESA is not required for this action.
Proposed Renewal IHA and Request for Public Comment
As a result of these preliminary determinations, NMFS proposes to
issue a Renewal IHA to CDFW for conducting Phase II of the Elkhorn
Slough Tidal Marsh Restoration Project in Elkhorn Slough located in
Monterey County, California, provided the previously described
mitigation, monitoring, and reporting requirements are incorporated. A
draft of the proposed and final initial IHA can be found at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. We request comment on our analyses, the
proposed Renewal IHA, and any other aspect of this notice. Please
include with your comments any supporting data or literature citations
to help inform our final decision on the request for MMPA
authorization.
Dated: June 2, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2021-11915 Filed 6-7-21; 8:45 am]
BILLING CODE 3510-22-P
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