Notice2021-20466
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
September 22, 2021
Effective
September 16, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the California Department of Fish and Wildlife (CDFW) to incidentally harass, by Level B harassment only, marine mammals during restoration activity associated with the Elkhorn Slough Tidal Marsh Restoration Project, Phase III, in Monterey Bay, California.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 181 (Wednesday, September 22, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 181 (Wednesday, September 22, 2021)]
[Notices]
[Pages 52644-52649]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-20466]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB358]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Elkhorn Slough Tidal Marsh
Restoration Project, Phase III in Monterey County, California
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
the California Department of Fish and Wildlife (CDFW) to incidentally
harass, by Level B harassment only, marine mammals during restoration
activity associated with the Elkhorn Slough Tidal Marsh Restoration
Project, Phase III, in Monterey Bay, California.
DATES: This authorization is effective from September 16, 2021 through
September 15, 2022.
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.
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 1-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
[[Page 52645]]
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) (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 2021 Renewal, CDFW requested that a new IHA be
issued that would be valid for one year from the date of issuance.
Under this new 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 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 Specified Activity
The Elkhorn Slough Tidal Marsh Restoration Project (project) plans
to restore approximately 122 acres (49.37) of tidal marsh across three
phases, all of which are located in Monterey County, California. This
IHA covers take incidental to Phase III of the project, which will
restore 28.6 acres (11.57 hectares) at the Seal Bend Restoration Area.
Similar to previous project phases, 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 authorizing take, by Level B Harassment, of
Pacific harbor seals as a result of the specified activity.
A detailed description of the planned restoration project is
provided in the Federal Register notice for the proposed IHA (86 FR
43204; August 6, 2021). Since that time, no changes have been made to
the planned restoration activities. Therefore, a detailed description
is not provided here. Please refer to that Federal Register notice for
the description of the specific activity.
Comments and Responses
A notice of NMFS's proposal to issue an IHA to CDFW was published
in the Federal Register on August 6, 2021 (86 FR 43204). That notice
described, in detail, CDFW's activity, the marine mammal species that
may be affected by the activity, and the anticipated effects on marine
mammals. During the 30-day public comment period, NMFS received no
comments.
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 IHA.
Please refer to the previous Federal Register notices for the 2020 IHA
for these descriptions. Please also refer to NMFS' website
(<a href="http://www.nmfs.noaa.gov/pr/species/mammals/">www.nmfs.noaa.gov/pr/species/mammals/</a>) for generalized species
accounts.
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 2021-2022 IHA. The effects of CDFW's activities have the potential
to result in behavioral harassment of marine mammals in the vicinity of
the project area. The notice of proposed IHA (86 FR 43204; August 6,
2021) included a discussion of the effects of anthropogenic activity on
marine mammals and their habitat. That information and analysis is
incorporated by reference into this final IHA determination and is not
repeated here; please refer to the notice of proposed IHA (86 FR 43204;
August 6, 2021).
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 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 project
activities are provided in Table 2.
[[Page 52646]]
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
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 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).
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 Mitigation
Some of the mitigation 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. However, a few
requirements have been updated to reflect NMFS more recent construction
requirements and those changes are discussed in
[[Page 52647]]
detail below and are required 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 Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
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; and
<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 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
[[Page 52648]]
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 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 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 monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the
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 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
activity (including the mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS finds that small numbers of
marine mammals will be taken relative to the population size of the
affected species or 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.
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 action (i.e., the issuance of an IHA) with
[[Page 52649]]
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 determined that the
issuance of the IHA qualifies to be categorically excluded from further
NEPA review just as previous phases of the project did.
We have reviewed all comments submitted in response to the proposed
IHA notice to conclude our NEPA process and make a final decision on
the IHA request.
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 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.
Authorization
As a result of these determinations, NMFS has issued an IHA to CDFW
for the potential harassment of small numbers of harbor seals
incidental to conducting restoration activities at the Seal Bend
Restoration Area in Elkhorn Slough (Monterey County, CA), provided the
previously mentioned mitigation, monitoring, and reporting requirements
are incorporated.
Dated: September 16, 2021.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2021-20466 Filed 9-21-21; 8:45 am]
BILLING CODE 3510-22-P
</pre></body>
</html>Indexed from Federal Register on September 22, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.