Notice2023-07862
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Port San Luis Breakwater Repairs in Avila Beach, California
Primary source
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Published
April 14, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS received a request from the U.S. Army Corps of Engineers (ACOE) for the renewal of their recently expired incidental harassment authorization (IHA) to take marine mammals incidental to Port San Luis breakwater repairs in Avila Beach, California. These activities consist of activities that are covered by the initial authorization but were not completed prior to its expiration. Pursuant to the Marine Mammal Protection Act, prior to issuing the initial 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.
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<title>Federal Register, Volume 88 Issue 72 (Friday, April 14, 2023)</title>
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[Federal Register Volume 88, Number 72 (Friday, April 14, 2023)]
[Notices]
[Pages 23002-23006]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-07862]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC907]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Port San Luis Breakwater Repairs in
Avila Beach, 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 U.S. Army Corps of Engineers
(ACOE) for the renewal of their recently expired incidental harassment
authorization (IHA) to take marine mammals incidental to Port San Luis
breakwater repairs in Avila Beach, California. These activities consist
of activities that are covered by the initial
[[Page 23003]]
authorization but were not completed prior to its expiration. Pursuant
to the Marine Mammal Protection Act, prior to issuing the initial 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 May 1,
2023.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service, and should be submitted via email to
<a href="/cdn-cgi/l/email-protection#e2abb6b2cc8a83908e83818a8790a28c8d8383cc858d94"><span class="__cf_email__" data-cfemail="baf3eeea94d2dbc8d6dbd9d2dfc8fad4d5dbdb94ddd5cc">[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: Jenna Harlacher, 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 issued or, if the taking is limited to
harassment, an incidental harassment authorization is issued.
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 1 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
circumstances. Specifically, on a case-by-case basis, NMFS may issue a
one-time 1-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, 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 Description
of the Specified Activities and Anticipated Impacts 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 1 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.
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
[[Page 23004]]
proposed action (i.e., the issuance of an IHA renewal) with respect to
potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental take 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 determined that the issuance of the
initial IHA qualified to be categorically excluded from further NEPA
review. NMFS has preliminarily determined that the application of this
categorical exclusion remains appropriate for this renewal IHA.
History of Request
On April 27, 2021, NMFS issued an IHA to the ACOE to take marine
mammals incidental to Port San Luis breakwater repairs in Avila Beach,
California (86 FR 22151, April 27, 2021), effective from April 1, 2022
through March 31, 2023. On March 28, 2023, NMFS received an application
for the renewal of that initial IHA. 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
were not completed prior to its expiration. As required, the applicant
also provided a preliminary monitoring report, 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.
Description of the Specified Activities and Anticipated Impacts
Port San Luis breakwater is approximately 2,400 feet (730 m) long
and 20 feet (6 m) wide. Repair identified in the initial IHA was
designed to focus on the most heavily damaged 1,420 feet (430 m) at the
seaward end of the breakwater. The footprint of the breakwater would
not be changed, but the crest elevation would be raised 3 feet (1 m)
from +13 feet Mean Lower Low Water (MLLW) to +16 feet MLLW for
hydraulic stability, to accommodate larger armor stone, to meet design
criteria, and to account for sea level rise. Repair work could
potentially extend to the seabed to ensure a stable slope and
structural stability is maintained.
The project was initially described as consisting of the repair of
a deteriorating breakwater at Port San Luis, California. The project is
required to protect Port San Luis Harbor and maintain safe navigability
within the port. Repair work includes minor excavation of shoaled
sediment (~15,000 cubic yards (11,470 cubic meters)) adjacent to the
leeward side of the breakwater to create adequate depths for barges and
support boats to access the breakwater for the repair. Approximately
29,000 tons (26,310 metric tons) of existing stone would need to be
reset and 60,000 tons (54,430 metric tons) of new stone (stones range
from 5 to 20 tons (4.5-18.1 metric tons) each) would be placed to
restore the most heavily damaged portion of the breakwater. The project
was expected to take no more than 174 work days over 7 months.
Due to a combination of contracting and weather delays only a
subset of the activities in the initial IHA were completed.
Specifically, under the initial IHA, the ACOE has completed: (1)
excavation of shoaled sediment adjacent to the leeward side of the
breakwater to create adequate depths for barges and other vessels to
access the breakwater for the repair work, (2) repair of 450 feet
(137.2 meters) of the breakwater. This renewal request is to cover the
subset of the activities covered in the initial IHA that will not be
completed during the effective IHA period due to project delays. The
remaining breakwater repair work under the renewal IHA would involve
completing the remaining 970 feet (295.7 meters) of repairs of the
breakwater and is expected to take no more than 162 workdays.
The likely or possible impacts of the ACOE's proposed activity on
marine mammals could involve both non-acoustic and acoustic stressors
and is unchanged from the impacts described in the initial IHA.
Potential non-acoustic stressors could result from the physical and
visual presence of the equipment, vessels, and personnel. Acoustic
stressors include effects of heavy equipment operation, rock setting,
and sediment movement. The effects of underwater and in-air noise and
visual disturbance from the ACOE's proposed activities have the
potential to result in Level B harassment of marine mammals in the
action area.
Detailed Description of the Activity
A detailed description of the construction activities for which
take is proposed here may be found in the notices of the proposed and
final IHAs for the initial authorization (86 FR 14579, March 17, 2021;
86 FR 22151, April 27, 2021). As previously mentioned, this request is
for a subset of the activities authorized in the initial IHA that would
not be completed prior to its expiration due to project delays. The
location, timing, and nature of the activities, including the types of
equipment planned for use, are identical to those described in the
previous notice for the initial IHA. The proposed renewal IHA would be
effective from May 1, 2023 through March 31, 2024.
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
notice of the proposed IHA for the initial authorization (86 FR 14579,
March 17, 2021). 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 (86 FR 14579, March 17, 2021).
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 the
authorization of take is proposed here may be found in the notice of
the proposed IHA for the initial authorization (86 FR 14579, March 17,
2021). 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 notices of the
proposed and final IHAs for the initial authorization (86 FR 14579,
March 17, 2021; 86 FR 22151, April 27, 2021). Specifically, days of
operation, area or space within which harassment is likely to occur,
and marine mammal occurrence data applicable to this authorization
remain
[[Page 23005]]
unchanged from the previously issued IHA. Similarly, the stocks taken,
methods of take, daily take estimates and types of take remain
unchanged from the previously issued IHA. The number of takes proposed
for authorization in this renewal are a subset of the initial
authorized takes that better represent the amount of activity left to
complete. These takes, which reflect the lower number of remaining days
of work (162), are indicated below in Table 1.
Table 1--Proposed Amount of Taking, by Level B Harassment, by Species and Stock and Percent of Take by Stock
----------------------------------------------------------------------------------------------------------------
Percent of
Species Stock Proposed take stock
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Harbor seal................................... California...................... 1,674 5.4
Steller sea lions............................. Eastern DPS..................... 3,124 7.2
California sea lion........................... U.S............................. 48,933 19
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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 FR notice announcing the issuance of the initial IHA,
and the discussion of the least practicable adverse impact included in
that document remains accurate (86 FR 22151, April 27, 2021). The
following mitigation, monitoring, and reporting measures are proposed
for this renewal:
<bullet> Monitoring must take place from 30 minutes prior to
initiation of construction activity (i.e., pre-start clearance
monitoring) through 30 minutes post-completion of construction
activity.
<bullet> The ACOE must avoid direct physical interaction with
marine mammals during construction activity. If a marine mammal comes
within 10 m of such activity, operations must cease and vessels must
reduce speed to the minimum level required to maintain steerage and
safe working conditions, as necessary to avoid direct physical
interaction.
<bullet> Pre-start clearance monitoring must be conducted during
periods of visibility sufficient for the lead Protected Species
Observer (PSO) to determine the shutdown zones clear of marine mammals.
Construction may commence when the determination is made.
<bullet> If construction is delayed or halted due to the presence
of a marine mammal, the activity may not commence or resume until
either the animal has voluntarily exited and been visually confirmed
beyond the shutdown zone or 15 minutes have passed without re-detection
of the animal.
<bullet> The Holder must use soft start techniques. Soft start
requires contractors and equipment to slowly approach the work site
creating a visual disturbance allowing animals in close proximity to
construction activities a chance to leave the area prior to stone
resetting or new stone placement. Contractors shall avoid walking or
driving equipment through the seal haulout. A soft start must be
implemented at the start of each day's construction activity and at any
time following cessation of activity for a period of 30 minutes or
longer.
<bullet> Vessels would approach the breakwater perpendicular to the
area they need to be as much as is feasible to minimize interactions
with pinnipeds on or near the breakwater.
<bullet> The Holder must ensure that construction supervisors and
crews, the monitoring team, and relevant ACOE staff are trained prior
to the start of construction activity subject to this IHA, so that
responsibilities, communication procedures, monitoring protocols, and
operational procedures are clearly understood. New personnel joining
during the project must be trained prior to commencing work.
<bullet> Construction activity must be halted upon observation of
either a species for which incidental take is not authorized or a
species for which incidental take has been authorized but the
authorized number of takes has been met, entering or within a 200 m
Level B harassment zone.
<bullet> Construction work will start at the landward end of the
breakwater as much as feasible.
<bullet> The ACOE must employ one protected species observers
(PSOs) to monitor the shutdown and Level B harassment zones.
<bullet> Monitoring will be conducted 30 minutes before, during,
and 30 minutes after construction activities. In addition, observers
shall record all incidents of marine mammal occurrence, regardless of
distance from activity, and shall document any behavioral reactions in
concert with distance from construction activity.
<bullet> The ACOE must submit a draft report detailing all
monitoring within 90 calendar days of the completion of marine mammal
monitoring or 60 days prior to the issuance of any subsequent IHA for
this project, whichever comes first.
<bullet> The ACOE must prepare and submit final report within 30
days following resolution of comments on the draft report from NMFS.
<bullet> The ACOE must submit all PSO datasheets and/or raw
sighting data (in a separate file from the Final Report referenced
immediately above).
<bullet> The ACOE must report injured or dead marine mammals.
Comments and Responses
As noted previously, NMFS published a notice of a proposed IHA (86
FR 14579, March 17, 2021) and solicited public comments on both our
proposal to issue the initial IHA for Port San Luis breakwater repairs
and on the potential for a renewal IHA, should certain requirements be
met. During the 30-day public comment period, NMFS received no comments
on either the proposal to issue the initial IHA for the ACOE's
construction activities or on the potential for a renewal IHA.
Preliminary Determinations
The proposed renewal request consists of a subset of activities
analyzed through the initial authorization described above. In
analyzing the effects of the activities for the initial IHA, NMFS
determined that the ACOE's activities would have a negligible impact on
the affected species or stocks and that authorized take numbers of each
species or stock were small relative to the relevant stocks (e.g., less
than one-third the abundance of all stocks). The mitigation measures
and monitoring and reporting requirements as described above are
identical to the initial IHA.
NMFS has preliminarily concluded that there is no new information
suggesting that our analysis or findings should change from those
reached for
[[Page 23006]]
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) ACOE's activities will not have an unmitigable adverse impact on
taking for subsistence purposes as no relevant subsistence uses of
marine mammals are implicated by this action; and (5) appropriate
monitoring and reporting requirements are included.
Endangered Species Act
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.
Proposed Renewal IHA and Request for Public Comment
As a result of these preliminary determinations, NMFS proposes to
issue a renewal IHA to the ACOE for conducting Port San Luis breakwater
repairs in Avila Beach, Ca, from May 1, 2023 through November 31, 2023,
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: April 10, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-07862 Filed 4-13-23; 8:45 am]
BILLING CODE 3510-22-P
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