Notice2021-16858
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
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 6, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS has received a request from the California Department of Fish and Wildlife (CDFW) for authorization to take marine mammals incidental to the Elkhorn slough Tidal Marsh Restoration Project (Phase III) in Monterey County, CA. which includes the excavation and movement of soil with heavy machinery for marsh restoration. NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-time, one-year renewal that could be issued under certain circumstances and if all requirements are met, as described in Request for Public Comments at the end of this notice. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorizations and agency responses will be summarized in the final notice of our decision.
Full Text
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<title>Federal Register, Volume 86 Issue 149 (Friday, August 6, 2021)</title>
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[Federal Register Volume 86, Number 149 (Friday, August 6, 2021)]
[Notices]
[Pages 43204-43212]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-16858]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB270]
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; proposed issuance of an incidental harassment
authorization; request for comments.
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SUMMARY: NMFS has received a request from the California Department of
Fish and Wildlife (CDFW) for authorization to take marine mammals
incidental to the Elkhorn slough Tidal Marsh Restoration Project (Phase
III) in Monterey County, CA. which includes the excavation and movement
of soil with heavy machinery for marsh restoration. NMFS is requesting
comments on its proposal to issue an incidental harassment
authorization (IHA) to incidentally take marine mammals during the
specified activities. NMFS is also requesting comments on a possible
one-time, one-year renewal that could be issued under certain
circumstances and if all requirements are met, as described in Request
for Public Comments at the end of this notice. NMFS will consider
public comments prior to making any final decision on the issuance of
the requested MMPA authorizations and agency responses will be
summarized in the final notice of our decision.
DATES: Comments and information must be received no later than
September 7, 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#226b76720c614d50414d50434c624c4d43430c454d54"><span class="__cf_email__" data-cfemail="5d14090d731e322f3e322f3c331d33323c3c733a322b">[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 https://
[[Page 43205]]
www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-
marine-mammal-protection-act without change. All personal identifying
information (e.g., name, address) voluntarily submitted by the
commenter may be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.
FOR FURTHER INFORMATION CONTACT: Kim Corcoran, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application and supporting documents (including NMFS FR notices of the
prior authorizations), 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 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.
The definitions of all applicable MMPA statutory terms cited above
are included in the relevant sections below.
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.
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.
We will review all comments submitted in response to this notice
prior to concluding our NEPA process or making a final decision on the
IHA request.
Summary of Request
On June 14, 2021, NMFS received a request from CDFW for an IHA to
take marine mammals incidental to the Elkhorn Slough Restoration
Project, Phase III, at the Seal Bend Restoration Area in Monterey
Country, CA. The application was deemed adequate and complete on July
27, 2021. CDFW's request is for take of a small number of Pacific
harbor seals (Phoca vitulina) by Level B harassment only. Neither CDFW
nor NMFS expects serious injury or mortality to result from this
activity and, therefore, an IHA is appropriate.
NMFS previously issued an IHA to CDFW for Phase I (82 FR 16800;
April 6, 2017) and Phase II (85 FR 14640; March 13, 2020) of the
Elkhorn Slough Restoration Project. Restoration work under the 2020 IHA
at the Minhoto-Hester and Seal Bend restoration areas was expected to
be completed within 180 days within the one-year timeframe of the IHA.
However, on May 3, 2021 CDFW informed NMFS that the estimated 180 days
of construction for both the Minhoto-Hester and Seal Bend Restoration
Areas would not be enough to complete the project. This preliminary
estimate did not adequately account for variable weather conditions
experienced during construction (e.g., wet weather and soils required
extensive reworking of fill), the amount of time to haul material from
the borrow area to the fill location, or contractor availability which
resulted in a smaller crew than initially expected. Therefore, only 118
days of construction occurred under the initial IHA. To cover the
remaining work at the Minhoto-Hester Restoration Area, CDFW requested
an IHA Renewal. NMFS published a notice of a proposed IHA Renewal and
request for comments in the Federal Register on June 8, 2021 to
complete the remaining 62 days of work (86 FR 30412; June 8, 2021)
(Hereafter referred to as the 2021 Renewal). We subsequently published
the final notice of our issuance of the IHA Renewal on July 7, 2021 (86
FR 35751).
As work at the Seal Bend Restoration Area had not begun and could
not be covered by the IHA Renewal, CDFW requested that a new IHA be
issued that would be valid for one year from the date of issuance.
Under this proposed IHA, CDFW would conduct 240 days of work to restore
28.6 acres (11.57 hectares) of tidal marsh habitat in the Seal Bend
Restoration Area. The project would include the use of haul trucks and
heavy earthmoving equipment to transport dry material out onto the
marsh. The proposed project activities will not differ from the 2020
IHA other than the number of construction days, and the means of
calculating take.
Description of the Proposed Activity
Overview
Over the past 150 years, human activities have altered the tidal,
freshwater, and sediment processes, which are essential to support and
sustain Elkhorn Slough's estuarine habitats. In response to years of
anthropogenic degradation (e.g., diking and marsh draining), the
Elkhorn Slough Tidal Marsh Restoration Project (project) plans to
restore approximately 122 acres (49.37 hectares) of tidal marsh across
three phases, all of which are located in Monterey County, California
(Figure 1). Phase I of the project, completed in 2018, restored 61
acres (24.69 hectares) of tidal marsh within the Minhoto-Hester Marsh
in Elkhorn Slough (Monterey, CA) (Figure 2) (82 FR 16800; April 06,
2017) (Hereafter referred to as the 2017 IHA). Phase II of the project,
planned for completion in September 2021, plans to restore 29.4 acres
(11.90 hectares) of tidal marsh at the Minhoto-Hester Restoration Area
adjacent to the Phase I Restoration Area (see Figure 2). As the
remainder of the
[[Page 43206]]
work associated with the project has not been completed and could not
be covered by the 2021 Renewal, CDFW requests that this proposed IHA
cover take incidental to Phase III of the project, which will restore
28.6 acres (11.57 hectares) at the Seal Bend Restoration Area shown in
Figure 2. Similar to previous projects, Phase III will relocate soil
from an upland area called ``the borrow'' through use of heavy earth
moving equipment, within a 12 month period. 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). NMFS is proposing to authorize take, by Level B
Harassment, of Pacfic harbor seals as a result of the specified
activity. To support public review and comment on the IHA that NMFS is
proposing to issue here, we refer to the documents related to the
previously issued IHA and discuss any new or changed information here.
The previous documents include the Federal Register notice of the
issuance of the 2020 IHA (85 FR 14640; March 13, 2020), the Federal
Register notice of the issuance of the 2021 IHA Renewal (86 FR 35751;
July 7, 2021), and all associated references and documents. We also
refer the reader to CDFW's previous and current applications and
monitoring reports which can be found at <a href="https://www.fisheries.noaa.gov/node/23111">https://www.fisheries.noaa.gov/node/23111</a>.
Dates and Duration
As previously mentioned, the Phase II IHA covered restoration work
at both the Minhoto-Hester Restoration Area and the Seal Bend
Restoration Area for 180 total days of construction but the work was
not able to be completed for both locations within the timeframe and
take estimate constraints of the 2020 IHA and 2021 Renewal IHA for the
reasons discussed above. Therefore, CDFW is requesting this new
authorization for 240 construction days to account for similar,
anticipated construction constraints at the Seal Bend Restoration Area,
such as likely wet weather, the distance between the borrow area and
restoration site, and limited contractor availability. CDFW is prepared
to start the work at Seal Bend as soon as they receive authorization,
so this IHA will be valid for one year from the date of issuance.
Specific Geographic Region
The project is located in the Elkhorn Slough estuary, about 90
miles south of San Francisco and 20 miles north of Monterey in Monterey
Country, California (Figure 1). The project sites are located on land
owned and operated by CDFW as part of the Elkhorn Slough Ecological and
National Estuarine Research Reserves. The waters of the Elkhorn Slough
State Marine Reserve and Monterey Bay National Marine Sanctuary run
north of the Phase III project site in Elkhorn Slough's main channel.
Two additional Marine Protected Areas are located within approximately
one mile of the project site: Elkhorn Slough State Marine Conservation
Area and Moro Cojo Slough State Marine Reserve.
Phase III would restore the Seal Bend Restoration Area which
includes about 28.6 acres (11.57 hectares) of historic farmland
adjacent to Elkhorn Slough and west of the Phase I and II restoration
areas (Figure 2). The proposed project area is low-lying area
consisting of subsided pickleweed (Salicornia) marsh, intertidal
mudflats, and tidal channels. Fill material for Seal Bend will be
obtained from a 38 acre (15.38 hectare) upland borrow area south of the
Minhoto-Hester (Phase II) Restoration Area (Figure 2). Once complete,
the slopes of the borrow area would be graded to increase marsh area
and create a gently sloping ecotone band along the edge of the Phase I
and II sites.
BILLING CODE 3510-22-P
[[Page 43207]]
[GRAPHIC] [TIFF OMITTED] TN06AU21.002
[[Page 43208]]
BILLING CODE 3510-22-C
Detailed Description of Specific Activity
As previously described, the proposed project would restore 28.6
acres (11.57 hectares) of tidal marsh habitat at the Seal Bend
Restoration Area. As described in more detail in the 2020 IHA, project
components to restore hydrologic function to the project area would
include raising the subsided marsh plain, maintaining or re-excavating
existing tidal channels, and restoring marsh plain, ecotone, and native
grassland habitat within a borrow/upland buffer area.
Up to 133,346 cubic yards (CY) (101950.33 cubic meters (CM)) of
soil will be obtained from the upland borrow area to raise the subsided
marsh plain to an average of 1.9 feet (0.58 m) above the current
height. This target elevation would allow emergent wetland vegetation
to naturally be reestablished. Sediment would be placed to a fill
elevation slightly higher than the target marsh plain elevation to
allow for settlement and consolidation of the underlying soils. After
construction is complete, the project would rely primarily on natural
vegetation recruitment in the restored marsh areas.
An additional detailed description of the proposed restoration
project is found in the proposed and issued 2020 IHA. The location and
nature of the activities, including the types of equipment planned for
use, are identical to those described in the previous notices.
Differences between the 2020 IHA and the proposed 2021-2022 IHA occur
in the number of days restoration work would occur, the method for
calculating take, and visual monitoring requirements, all of which are
discussed in detail below.
Description of Marine Mammals in the Area of Specified Activities
A description of the marine mammals in the area of the activities
is found in the 2020 IHA, which remains applicable to the proposed
2021-2022 IHA as well. In addition, NMFS has reviewed recent 2020 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 this
proposed IHA.
Potential Effects of Specified Activities 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 2020 IHA, which remains applicable to the issuance of
the proposed 2021-2022 IHA. There is no new information on potential
effects.
Estimated Take
A detailed description of the previous methods and inputs used to
estimate authorized take is found in the 2020 IHA. The total number of
construction days and the method of estimating take have been modified
from the 2020 IHA to reflect construction delays as discussed above and
the monitoring data received under the 2020 IHA. The source levels and
marine mammal occurrence and density remain unchanged from the 2020 IHA
and detailed information regarding these figures can be found in the
proposed and issued 2020 IHA.
Take Calculation and Estimates
To repeat how take was calculated in the 2020 IHA, we used the
total number of seals taken during Phase I construction (i.e., 62
seals) divided by the sum of the daily average number of seals observed
hourly during Phase I. That percentage (8.79 percent) was rounded to 9
percent and multiplied by the sum of the highest daily count of seals
observed by the Reserve Otter Monitoring Projects at all observation
areas between January 2018 and April 2019 (i.e., 417). That number was
multiplied by the total number of construction days to arrive at the
total take estimate that was used.
For the Phase III project, we have additional monitoring data that
more accurately reflects the amount of take that occurs during this
type of restoration activity. In particular we now have data that
suggests the maximum number of seals taken per day within 300 m of
construction activity has been 8, which occurred on September 8, 2020
(Table 1). Therefore, we propose to use that maximum number of seals
taken per day to estimate take using the following formula:
Total Take Estimate = Max # of seals taken per day * # of Construction
Days
The average total individual takes per day for Phase II was 1.33
which is considerably lower than the proposed maximum number of seals
taken per day (8) (Table 1). Therefore we believe this approach is
adequately precautionary and reflects likely expected take. Using this
approach, a summary of estimated takes of harbor seals incidental to
the proposed project activities are provided in Table 2.
Table 1--Phase II Harbor Seal Disturbance Data--Number of Seals
Experiencing Level B Harassment
------------------------------------------------------------------------
Total
Date Distance (m) individuals
harassed \1\
------------------------------------------------------------------------
9/2/2020.......................... 300m................ 0
9/8/2020.......................... 150m................ 0
9/8/2020.......................... 150m................ 0
9/9/2020.......................... 60m................. 0
9/10/2020......................... 60m................. 0
9/15/2020......................... 60m................. 1
9/21/2020......................... 60m................. 0
9/21/2020......................... 60m................. 2
11/9/2020......................... 300m................ 1
3/17/2021......................... 200m................ 5
3/24/2021......................... 60m................. 1
3/24/2021......................... 60m................. 1
4/5/2021.......................... 80m................. 2
4/5/2021.......................... 60m................. 1
4/14/2021......................... 80m................. 2
9/2/2020.......................... 60m................. 0
9/3/2020.......................... 20m................. 1
9/8/2020.......................... 80m................. 8
9/9/2020.......................... 40m................. 0
[[Page 43209]]
9/16/2020......................... 100m................ 1
9/22/2020......................... 40m................. 0
10/19/2020........................ 40m................. 2
10/28/2020........................ 100m................ 0
11/5/2020......................... 60m................. 0
12/3/2020......................... 80m................. 1
12/16/2020........................ 60m................. 7
5/4/2021.......................... 80m................. 0
---------------
Total......................... .................... 36
------------------------------------------------------------------------
\1\ ``Total Seals Taken'' = the number of seals that moved or flushed
during the incident. Alert responses are not considered to be takes.
Table 2--Calculated and Proposed Take and Percentage of Stock Exposed
----------------------------------------------------------------------------------------------------------------
Authorized take
-----------------------------------------------------------------------------------------------------------------
Percent of
Species Level B Level A stock \3\
----------------------------------------------------------------------------------------------------------------
Pacific Harbor Seal........................ 8 max seals taken per day \1\ *(240 0 6.2
days \2\) = 1920.
----------------------------------------------------------------------------------------------------------------
\1\ Maximum number of seals harassed/taken in one day during Phase II.
\2\ Number of construction days at the Seal Bend Restoration Area.
\3\ Data from U.S. Pacific Marine Mammal Stock Assessments: 2014 (Carretta et al., 2015) (Abundance = 30,968).
Proposed Mitigation, Monitoring and Reporting Measures
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
Description of Proposed Mitigation
Some of the proposed mitigation measures are identical to those
included in the Federal Register notification announcing the final 2020
IHA and detailed descriptions of these requirements can be found in
that document. However, a few requirements have been updated to reflect
NMFS more recent construction requirements and those changes are
discussed in detail below and proposed for this project:
Visual Monitoring--CDFW must fulfill monitoring requirements as
described below. Required monitoring must be conducted by dedicated,
trained, NMFS-approved Protected Species Observer(s) (PSO(s)). CDFW
must monitor the project area to the maximum extent possible based on
the required number of PSOs, required monitoring locations, and
environmental conditions.
<bullet> Level B Harassment Zone--PSOs shall establish a Level B
harassment zone within 300 m of all construction activities.
<bullet> When construction activities occur either, (1) in water
or; (2) within the boundaries of the Seal Bend Restoration Area (Phase
III) identified in Figure 2, monitoring must occur every other day when
work is occurring.
<bullet> When construction activities occur near the ``borrow''
area where marsh fill material is gathered, monitoring must occur every
fifth day when work is occurring within 300 m from seal haulouts or, if
outside this area, when work is occurring less than 200 m from the
water. 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.
Description of Proposed Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting
[[Page 43210]]
that will result in increased knowledge of the species and of the level
of taking or impacts on populations of marine mammals that are expected
to be present in the proposed action area. Effective reporting is
critical both to compliance as well as ensuring that the most value is
obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<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); and
<bullet> Mitigation and monitoring effectiveness.
Changes from the 2020 IHA include:
<bullet> 5(g)(v)(10): Notes should include any of the following
information to the extent it is feasible to record:
[cir] Age-class;
[cir] Sex;
[cir] Unusual activity or signs of stress;
[cir] Activity of seals observed within hour timeframe (e.g.,
resting, swimming, etc.) and approximate number of seals that have
arrived or left since last hourly count; and
[cir] Any other information worth noting;
<bullet> 6(a): The Holder must submit its draft report(s) on all
monitoring conducted under this IHA within 90 calendar days of the
completion of monitoring or 60 calendar days prior to the requested
issuance of any subsequent IHA for construction activity at the same
location, whichever comes first. A final report must be prepared and
submitted within 30 calendar days following receipt of any NMFS
comments on the draft report. If no comments are received from NMFS
within 30 calendar days of receipt of the draft report, the report
shall be considered final.
The rest of proposed monitoring and reporting measures are
identical to those included in the FR Notice announcing the final 2020
IHA and detailed descriptions of these requirements can be found in
that document.
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS's implementing
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, or
ambient noise levels).
Construction activities associated with this project have the
potential to disturb or displace marine mammals. No serious injury or
mortality is expected, and with mitigation we expect to avoid any
potential for Level A Harassment as a result of the Seal Bend
construction activities for Phase III. The specified activities may
result in take, in the form of Level B harassment (behavioral
disturbance) only, from visual disturbance and/or noise from
construction activities. The project area is within a portion of the
local, year round, habitat for harbor seals of the greater Elkhorn
Slough. Behavioral disturbance associated with these activities are
expected to affect only a small amount of the total population,
although those effects could be recurring over the life of the project
if the same individuals remain in the project vicinity. Harbor seals
may avoid the area or halt any behaviors (e.g., resting) when exposed
to anthropogenic noise or visual disturbance. Due to the abundance of
suitable and, in some cases, newly restored haulout habitat available
in the greater Elkhorn Slough, the short-term displacement of resting
harbor seals is not expected to affect the overall fitness of any
individual animal.
Effects on individuals that are taken by Level B Harassment, on the
basis of reports in the literature as well as monitoring from previous
phases and other similar activities, will likely be limited to
reactions such as displacement from the area or disturbance during
resting. The construction activities analyzed here, such as equipment
used, construction approach, and turbidity management, are the same as
those activities previously analyzed under the 2017 and 2020 IHAs. Both
Phase I and Phase II of the project reported no injuries or mortality
to marine mammals as a result of the construction activities, and no
known long-term adverse consequences from behavioral harassment have
been documented. Repeated exposures of individuals to levels of noise
or visual disturbance at these levels, though they may cause Level B
Harassment, are unlikely to result in hearing impairment or significant
disruption of foraging behaviors. Many animals perform vital functions,
such as feeding, resting, traveling, and socializing, on a diel cycle
(i.e., 24 hour cycle), and behavioral reactions (such as disruption of
critical life functions, displacement, or avoidance of important
habitat) are more likely to be significant if they last more than one
diel cycle or recur on subsequent days (Southall et al., 2007).
However, Pacific harbor seals have been hauling out at Elkhorn slough
for several years (including during pupping season and while females
are pregnant), despite the presence of anthropogenic noise and
activities such as vessel traffic, Union Pacific Railroad (UPRR)
trains, and human voices from kayaking and recreational activities.
Harbor seals have repeatedly hauled out to rest (inside and outside the
project area) or
[[Page 43211]]
pup (outside of the project area) despite these potential stressors.
The activities are not expected to result in the alteration of
reproductive or feeding behaviors. It is not likely that neonates will
be in the project area as females prefer to keep their pups along the
main channel of Elkhorn Slough, which is outside the area expected to
be restored by project activities (Figure 2). Seals are primarily
foraging outside of Elkhorn Slough and at night in Monterey Bay,
outside the project area, and during times when construction activities
are not occurring.
Pacific harbor seals, as the only potentially affected marine
mammal species under NMFS jurisdiction in the action area, are not
listed as threatened or endangered under the ESA and NMFS SARs for this
stock has shown to be increasing in population size and is considered
stable (Caretta et al., 2015). Even repeated Level B Harassment of some
small subset of the overall stock is unlikely to result in any
significant decrease in viability for the affected individuals, and
thus will not result in any adverse impacts to the stock as a whole.
The restoration of the marsh habitat will have no adverse effect on
marine mammal habitat, but possibly a long-term beneficial effect on
harbor seals by improving ecological function of the slough, including
higher species diversity, increase species abundance, larger fish, and
improved habitat.
In summary and as described above, the following factors primarily
support our preliminary determination that the impacts resulting from
this activity are not expected to adversely affect the species or stock
through effects on annual rates of recruitment or survival:
<bullet> No mortality is anticipated or authorized;
<bullet> No Level A Harassment is anticipated or authorized;
<bullet> Anticipated incidents of Level B Harassment consist of, at
worst, temporary modifications in behavior;
<bullet> Primary foraging and reproductive habitat are outside of
the project area and not expected to result in the alteration of
habitat important to these behaviors or substantially impact the
behaviors themselves. There is alternative haulout habitat just outside
the footprint of the construction area, along the main channel of
Elkhorn Slough, and in Parson's Slough, often the preferred pupping
grounds in recent years (per comm Jim Harvey 2019), that will be
available for seals while some of the haulouts are inaccessible;
<bullet> Restoration of the marsh habitat will have no adverse
effect on marine mammal habitat, but possibly a long-term beneficial
effect;
<bullet> Presumed efficacy of the mitigation measures in reducing
the effects of the specified activity to the level of least practicable
impact; and
<bullet> These stocks are not listed under the ESA or considered
depleted under the MMPA.
In combination, we believe that these factors, as well as the
available body of evidence from previous phases of the project and
other similar activities, demonstrate that the potential effects of the
specified activities will have only short-term effects on a relatively
small portion of the entire California stock. The specified activities
are not expected to impact rates of recruitment or survival and will
therefore not result in population-level impacts.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
For the proposed Phase III of the Elkhorn Slough Tidal Marsh
Restoration Project, the authorized take (if we conservatively assume
that each take occurred to a new animal, which is unlikely) comprises
approximately 6.2 percent of the abundance of Pacific harbor seals in
the California Stock. Therefore, based on the analysis herein of the
proposed activity (including the proposed mitigation and monitoring
measures) and the anticipated take of marine mammals, NMFS
preliminarily finds that small numbers of marine mammals will be taken
relative to the population size of the affected species or stock.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stock or species implicated by this action. Therefore NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Endangered Species Act (ESA)
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 Authorization
As a result of these preliminary determinations, NMFS proposes to
issue an IHA to CDFW for conducting restoration activities at the Seal
Bend Restoration Area in Elkhorn Slough (Monterey County, CA) for 12
months from the date of issuance, provided the previously mentioned
mitigation, monitoring, and reporting requirements are incorporated. A
draft of the proposed 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>.
Request for Public Comments
We request comment on our analyses (included in both this document
and the referenced documents supporting the prior IHAs), the proposed
authorization, and any other aspect of this Notice of Proposed IHA for
the proposed Elkhorn Slough Tidal Marsh Restoration Project, Phase III,
in Monterey County, CA. We also request at this time comment on the
potential for renewal of this proposed IHA as described in the
paragraph below. Please include with your comments any supporting data
or literature citations to help inform our
[[Page 43212]]
final decision on the request for MMPA authorization.
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 Specific Activity section of this notice is
planned or (2) the activities as described in the Detailed Description
of Specific Activity section of this notice would not be completed by
the time the IHA expires and a Renewal would allow for completion of
the activities beyond that described in the Dates and Duration section
of this notice, provided all of the following conditions are met:
<bullet> 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);
<bullet> The request for renewal must include the following:
(1) 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);
and
(2) 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; and
<bullet> 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.
Dated: August 2, 2021.
Catherine Marzin,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2021-16858 Filed 8-5-21; 8:45 am]
BILLING CODE 3510-22-P
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