Notice2022-19945
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 15, 2022
Effective
September 16, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS has received a request from the California Department of Fish and Wildlife (CDFW) for the re-issuance of a previously issued incidental harassment authorization (IHA) with the only change being effective dates. The initial IHA authorized take of Pacific harbor seals (Phoca vitulina), by Level B harassment only, incidental to the Elkhorn Slough Restoration Project, Phase III, at the Seal Bend Restoration Area in Monterey Country, CA. The project has been delayed and none of the work covered in the initial IHA has been conducted. The initial IHA was effective from September 16, 2021, through September 15, 2022. CDFW has requested re-issuance with new effective dates of September 16, 2022, through September 15, 2023. The scope of the activities and anticipated effects remain the same, authorized take numbers are not changed, and the required mitigation, monitoring, and reporting remains the same as included in the initial IHA. NMFS is, therefore, issuing a second identical IHA to cover the incidental take analyzed and authorized in the initial IHA.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 178 (Thursday, September 15, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 178 (Thursday, September 15, 2022)]
[Notices]
[Pages 56631-56633]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-19945]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC304]
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 incidental harassment authorization.
-----------------------------------------------------------------------
SUMMARY: NMFS has received a request from the California Department of
Fish and Wildlife (CDFW) for the re-issuance of a previously issued
incidental harassment authorization (IHA) with the only change being
effective dates. The initial IHA authorized take of Pacific harbor
seals (Phoca vitulina), by Level B harassment only, incidental to the
Elkhorn Slough Restoration Project, Phase III, at the Seal Bend
Restoration Area in Monterey Country, CA. The project has been delayed
and none of the work covered in the initial IHA has been conducted. The
initial IHA was effective from September 16, 2021, through September
15, 2022. CDFW has requested re-issuance with new effective dates of
September 16, 2022, through September 15, 2023. The scope of the
activities and anticipated effects remain the same, authorized take
numbers are not changed, and the required mitigation, monitoring, and
reporting remains the same as included in the initial IHA. NMFS is,
therefore, issuing a second identical IHA to cover the incidental take
analyzed and authorized in the initial IHA.
DATES: This authorization is effective from September 16, 2022, through
September 15, 2023.
[[Page 56632]]
ADDRESSES: An electronic copy of the final 2021 IHA previously issued
to CDFW, CDFW's application, and the Federal Register notices proposing
and issuing the initial IHA may be obtained by visiting <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-tidal-marsh-restoration-project-elkhorn-slough-phase-iii-2021">https://www.fisheries.noaa.gov/action/incidental-take-authorization-tidal-marsh-restoration-project-elkhorn-slough-phase-iii-2021</a>. In case of
problems accessing these documents, please call the contact listed
below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Amy Fowler, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act
(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 authorization is provided to the
public for review.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring and reporting of such takings
are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 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.
The MMPA states that the term ``take'' means to harass, hunt,
capture, kill or attempt to harass, hunt, capture, or kill any marine
mammal.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
Summary of Request
On September 22, 2021, NMFS published final notice of our issuance
of an IHA authorizing take of marine mammals incidental to the Elkhorn
Slough Tidal Marsh Restoration Project, Phase III (86 FR 52644). The
effective dates of that IHA were September 16, 2021, through September
15, 2022. On July 12, 2022, CDFW informed NMFS that the project was
delayed. None of the work identified in the initial IHA (i.e.,
restoration work at the Seal Bend Restoration Area) has occurred. CDFW
submitted a request that we reissue an identical IHA that would be
effective from September 16, 2022, through September 15, 2023, in order
to conduct the construction work that was analyzed and authorized
through the previously issued IHA. Therefore, re-issuance of the IHA is
appropriate.
Summary of Specified Activity and Anticipated Impacts
The planned activities (including mitigation, monitoring, and
reporting), authorized incidental take, and anticipated impacts on the
affected stocks are the same as those analyzed and authorized through
the previously issued IHA.
Phase III of the Elkhorn Slough Tidal Marsh Restoration Project
will restore 28.6 acres (11.57 hectares) at the Seal Bend Restoration
Area by relocating soil from an upland area called ``the borrow''
through use of heavy earth moving equipment, within a 12 month period.
A detailed description of the planned restoration activities is found
in the Federal Register notice for the proposed initial IHA (86 FR
43204, August 6, 2021). The location, timing, and nature of the
activities, including the types of equipment planned for use, are
identical to those described in the initial IHA. The mitigation and
monitoring are also as prescribed in the initial IHA.
Construction activities are expected to produce airborne noise and
visual disturbance that have the potential to result in behavioral
harassment of Pacific harbor seals. A description of the methods and
inputs used to estimate take anticipated to occur and, ultimately, the
take that was authorized is found in the previous documents referenced
above. The data inputs and methods of estimating take are identical to
those used in the initial IHA. NMFS has reviewed recent Stock
Assessment Reports, information on relevant Unusual Mortality Events,
and recent scientific literature, and determined that no new
information affects our original analysis of impacts or take estimate
under the initial IHA.
We refer to the documents related to the previously issued IHA,
which include the Federal Register notice of the issuance of the
initial 2021 IHA for Phase III of the Elkhorn Slough Tidal Marsh
Restoration Project (86 FR 52644, September 22, 2021), CDFW's
application, the Federal Register notice of the proposed IHA (86 FR
43204, August 6, 2021), and all associated references and documents.
Determinations
CDFW will conduct activities as analyzed in the initial 2021 IHA.
As described above, the number of authorized takes of the same species
and stocks of marine mammals are identical to the numbers that were
found to meet the negligible impact and small numbers standards and
authorized under the initial IHA and no new information has emerged
that would change those findings. The reissued 2022 IHA includes
identical required mitigation, monitoring, and reporting measures as
the initial IHA, and there is no new information suggesting that our
analysis or findings should change.
Based on the information contained here and in the referenced
documents, NMFS has determined the following: (1) the required
mitigation measures will effect the least practicable impact on marine
mammal species or stocks and their habitat; (2) the authorized takes
will have a negligible impact on the affected marine mammal species or
stocks; (3) the authorized takes represent small numbers of marine
mammals relative to the affected stock abundances; and (4) CDFW's
activities will not have an unmitigable adverse impact on taking for
subsistence purposes as no relevant subsistence uses of marine mammals
are implicated by this action.
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 with respect to environmental
consequences on the human environment.
Accordingly, NMFS has determined that the issuance of the IHA
qualifies to be categorically excluded from further NEPA review. This
action is consistent with categories of activities identified in CE B4
of the Companion Manual for NOAA Administrative Order 216-6A, which do
not individually or
[[Page 56633]]
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.
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.
However, no incidental take of ESA-listed species is authorized or
expected to result from this activity. Therefore, NMFS has determined
that formal consultation under section 7 of the ESA is not required for
this action.
Authorization
NMFS has issued an IHA to CDFW for restoration activities at the
Seal Bend Restoration Area in Elkhorn Slough (Monterey County, CA) from
September 16, 2022, through September 15, 2023. All previously
described mitigation, monitoring, and reporting requirements from the
initial 2021 IHA are incorporated.
Dated: September 9, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-19945 Filed 9-14-22; 8:45 am]
BILLING CODE 3510-22-P
</pre></body>
</html>Indexed from Federal Register on September 15, 2022.
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.