Notice2023-10640
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Punta Gorda Lighthouse Stabilization Project in Humboldt 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
May 18, 2023
Effective
June 1, 2023
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 Bureau of Land Management (BLM) for authorization to incidentally harass marine mammals during construction activities associated with Phase 2 of the Punta Gorda Lighthouse (PGL) Stabilization Project in Humboldt County, California.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 96 (Thursday, May 18, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 96 (Thursday, May 18, 2023)]
[Notices]
[Pages 31693-31701]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10640]
[[Page 31693]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC890]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Punta Gorda Lighthouse
Stabilization Project in Humboldt 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 Bureau of Land Management (BLM) for authorization to incidentally
harass marine mammals during construction activities associated with
Phase 2 of the Punta Gorda Lighthouse (PGL) Stabilization Project in
Humboldt County, California.
DATES: This authorization is effective from June 1, 2023, through
October 1, 2023.
FOR FURTHER INFORMATION CONTACT: Kate Fleming, Office of Protected
Resources, NMFS, (301) 427-8401.
Electronic copies of the application and supporting documents, as
well as a list of the references cited in this document, may be
obtained online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</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. Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et
seq.) directs the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are proposed or, if the taking is limited to harassment, a notice of a
proposed IHA is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the 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 the 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 October 26, 2022, NMFS received a request from BLM for an IHA to
take marine mammals incidental to Phase 2 of the PGL Stabilization
Project in Humboldt County, California. Following NMFS' review of the
application, BLM submitted a revised version on January 27, 2023, and
again on February 8, 2023. The application was deemed adequate and
complete on February 9, 2023. BLM's request is for take of northern
elephant seal (Mirounga angustirostris), Pacific harbor seal (Phoca
vitulina richardii), California sea lion (Zalophus californianus), and
Steller sea lion (Eumetopias jubatus) by Level B harassment only.
Neither BLM nor NMFS expect serious injury or mortality to these marine
mammals to result from this activity and, therefore, an IHA is
appropriate.
NMFS previously issued an IHA to BLM for related work (87 FR 34659,
June 7, 2022). BLM complied with all the requirements (e.g.,
mitigation, monitoring, and reporting) of the previous IHA and
information regarding their monitoring results may be found in the
Effects of the Specified Activity on Marine Mammals and Their Habitat
section in the Federal Register notice for the proposed IHA (88 FR
17525, March 23, 2023) and Estimated Take sections.
This IHA covers the final year of work of a larger project for
which BLM obtained a prior IHA. The larger 2-year project involves
construction activities to restore all remaining buildings of the PGL
Site. There are no changes from the proposed IHA to the final IHA.
Description of the Planned Activity
Overview
The PGL was established as an aid to navigation in 1912 along the
northern California coast. While in use, the lighthouse station
included the lighthouse, oil house, three residences, and numerous
other small buildings typical of small military outposts. The U.S.
Coast Guard decommissioned the lighthouse in 1951. BLM assumed
management of the site following the PGL's decommission. The concrete
lighthouse and oil house were all that remained when the site was
listed in the National Registry of Historic Places in 1976.
BLM repaired and stabilized the lighthouse building itself during
the summer of 2022. Construction activities are planned to repair and
stabilize the remaining structure at the site, which is an oil house.
Human presence, noise from construction work, and noise from and/or
presence of supply transport vehicles may result in behavioral
disturbance primarily of harbor seals and northern elephant seals, and
potentially California sea lions and Steller sea lions. The project
will take no more than 122 construction days between June and September
2023.
A detailed description of the planned lighthouse stabilization
project is provided in the Federal Register notice for the proposed IHA
(88 FR 17525, March 23, 2023). Since that time, no changes have been
made to the planned construction activities. Therefore, a detailed
description is not provided here. Please refer to that Federal Register
notice for the description of the specific activity.
Mitigation, monitoring, and reporting measures are described in
detail later in this document (please see Mitigation and Monitoring and
Reporting sections).
Comments and Responses
A notice of NMFS's proposal to issue an IHA to BLM was published in
the Federal Register on March 23, 2023 (88 FR 17525). That notice
described, in detail, BLM'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, the United States
Geological Survey noted that they have ``no comment at this time''.
NMFS received no other public comments.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior
[[Page 31694]]
and life history of the potentially affected species. NMFS fully
considered all of this information, and we refer the reader to these
descriptions, incorporated here by reference, instead of reprinting the
information. Additional information regarding population trends and
threats may be found in NMFS' Stock Assessment Reports (SARs;
<a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS'
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 1 lists all species or stocks for which take is expected and
authorized for this activity, and summarizes information related to the
population or stock, including regulatory status under the MMPA and
Endangered Species Act (ESA), and potential biological removal (PBR),
where known. PBR is defined by the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (as described in NMFS' SARs). While no
serious injury or mortality is authorized here, PBR and annual serious
injury and mortality from anthropogenic sources are included here as
gross indicators of the status of the species or stocks and other
threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. Pacific and Alaska SARs. All values presented in Table 1 are
the most recent available at the time of publication (including from
the draft 2022 SARs) and are available online at:
<a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.
Table 1--Species Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Otariidae (eared seals and
sea lions):
Steller sea lion................ Eumatopias jubata...... Eastern U.S............ -, -, N 43,201 (N/A, 43,201, 2,592 112
2017).
California sea lion............. Zalophus californica... U.S.................... -, -, N 257,606 (N/A, 233,515, 14,011 >=321
2014).
Family Phocidae (earless seals):
Northern elephant seal.......... Mirounga angustirostris California Breeding.... -, -, N 187,386 (N/A, 85,369, 5,122 13.7
2013).
Pacific Harbor seal............. Phoca vitulina California............. -, -, N 30,968 (N/A 27,348, 1,641 43
richardii. 2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>. CV
is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range.
As indicated above, all four species (with four managed stocks) in
Table 1 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur.
A detailed description of the of the species likely to be affected
by the lighthouse stabilization project, including brief introductions
to the species and relevant stocks as well as available information
regarding population trends and threats, and information regarding
local occurrence, were provided in the Federal Register notice for the
proposed IHA (88 FR 17525, March 23, 2023); since that time, we are not
aware of any changes in the status of these species and stocks;
therefore, detailed descriptions are not provided here. Please refer to
that Federal Register notice for these descriptions. Please also refer
to NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for
generalized species accounts.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
Acoustic and visual stimuli generated by personnel working at the
PGL and traversing the beach to access the work site, noise from
construction equipment operating at PGL, and helicopters hovering over
the site to transport equipment and supplies may have the potential to
cause behavioral disturbance (Level B harassment) of marine mammals in
the vicinity of the project area. The Federal Register notice of the
proposed IHA (88 FR 17525, March 23, 2023) included a discussion of the
effects of anthropogenic activity on marine mammals and their habitat.
That information and analysis is incorporated by reference into the
final determination for the IHA and is not repeated here; please refer
to the notice of proposed IHA (88 FR 17525, March 23, 2023).
The Estimated Take section later in this document includes a
quantitative analysis of the number of individuals that are expected to
be taken by this activity. The Negligible Impact Analysis and
Determination section considers the content of this section, the
Estimated Take section, and the Mitigation section, to draw conclusions
regarding the likely impacts of these activities on the reproductive
success or survivorship of individuals and whether those impacts are
reasonably expected to, or reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through the IHA, which will inform both NMFS' consideration
of ``small numbers,'' and the negligible impact determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the
[[Page 31695]]
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).
Authorized takes will be by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to construction personnel and equipment,
including helicopters used to transport materials. Based on the nature
of the activity, Level A harassment is neither anticipated nor
authorized. For BLM's activities, behavioral (Level B) harassment is
limited to movement and flushing, defined by the disturbance scale of
pinniped responses (Table 2).
The presence of construction personnel may have the potential to
cause Level B harassment of marine mammals hauled-out at the PGL and
along the planned access route. Disturbance includes a variety of
effects, from subtle to conspicuous changes in behavior, movement, and
displacement. Disturbance may result in reactions ranging from an
animal simply becoming alert to the presence of BLM's construction
personnel (e.g., turning the head, assuming a more upright posture) to
flushing from the haulout site into the water. NMFS does not consider
the lesser reactions to constitute behavioral harassment, or Level B
harassment takes, but rather assumes that pinnipeds that move greater
than two body lengths or longer, or if already moving, a change of
direction of greater than 90 degrees in response to the disturbance, or
pinnipeds that flush into the water, are behaviorally harassed, and
thus considered incidentally taken by Level B harassment. NMFS uses a
3-point scale (Table 2) to determine which disturbance reactions
constitute take under the MMPA. Levels 2 and 3 (movement and flush) are
considered take, whereas level 1 (alert) is not. Animals that respond
to the presence of BLM personnel by becoming alert, but do not move or
change the nature of locomotion as described, are not considered to
have been subject to behavioral harassment.
Table 2--Disturbance Scale of Pinniped Responses
------------------------------------------------------------------------
Level Type of response Definition
------------------------------------------------------------------------
1................ Alert............. Seal head orientation or brief
movement in response to
disturbance, which may include
turning head towards the
disturbance, craning head and
neck while holding the body
rigid in a u-shaped position,
changing from a lying to a
sitting position, or brief
movement of less than twice the
animal's body length.
2 *.............. Movement.......... Movements in response to the
source of disturbance, ranging
from short withdrawals at least
twice the animal's body length
to longer retreats over the
beach, or if already moving a
change of direction of greater
than 90 degrees.
3 *.............. Flush............. All retreats (flushes) to the
water.
------------------------------------------------------------------------
* Only Levels 2 and 3 are considered take under the MMPA. Level 1 is not
considered take.
As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
authorized take numbers are calculated.
Marine Mammal Occurrence
In this section we provide information about the occurrence of
marine mammals, including density or other relevant information that
will inform the take calculations.
Researchers from Humboldt State University (HSU) regularly conduct
census counts of pinnipeds at the PGL and surrounding areas along the
northern California coast (e.g., Goley et al., 2021, BLM 2022).
Protected Species Observers (PSOs) on site during the first year of
construction recorded daily counts as well. Counts of northern elephant
seals, harbor seals, California sea lion, and Steller sea lion at the
PGL during the effective dates of the issued IHA (June 1 until October
1) are presented below.
Table 3--Pinniped Census Counts at Punta Gorda Lighthouse
----------------------------------------------------------------------------------------------------------------
Number of Number of
Number of Number of California sea Steller sea
Date elephant seals harbor seals lions observed lions observed
observed observed * * *
----------------------------------------------------------------------------------------------------------------
2019 Counts
----------------------------------------------------------------------------------------------------------------
June 8.......................................... 101 51 - -
June 15......................................... 74 107 - -
June 23......................................... 34 81 - -
July 7.......................................... 40 116 - -
July 14......................................... 50 180 - -
July 21......................................... 54 123 - -
August 3........................................ 39 105 - -
August 21....................................... 44 80 - -
August 31....................................... 62 22 - -
September 15.................................... 162 22 - -
September 27.................................... 244 28 - -
----------------------------------------------------------------------------------------------------------------
2020 Counts
----------------------------------------------------------------------------------------------------------------
June 4.......................................... 177 - - -
June 11......................................... 83 - - -
[[Page 31696]]
June 14......................................... 80 55 - -
June 24......................................... 37 - - -
June 27......................................... 38 77 - -
July 4.......................................... 36 - - -
July 12......................................... 39 90 - -
July 16......................................... 38 - - -
July 24......................................... 36 123 - -
July 30......................................... 38 - - -
August 6........................................ 32 - - -
August 9........................................ 28 73 - -
August 13....................................... 28 - - -
August 20....................................... 27 - - -
August 27....................................... 33 - - -
August 30....................................... 48 36 - -
September 5..................................... 60 38 - -
September 19.................................... 133 51 - -
September 27.................................... 177 53 - -
----------------------------------------------------------------------------------------------------------------
2021 Counts
----------------------------------------------------------------------------------------------------------------
June 10......................................... 199 - - -
June 29......................................... 59 109 - -
July 10......................................... 48 128 - -
July 26......................................... 34 104 - -
August 7........................................ 30 103 - -
August 22....................................... 42 68 - -
September 2..................................... 106 - - -
September 16.................................... 135 - - -
----------------------------------------------------------------------------------------------------------------
2022 Counts
----------------------------------------------------------------------------------------------------------------
June 22......................................... 39 42 0 0
June 23......................................... 53 50 0 0
June 24......................................... 34 117 0 0
June 25......................................... 50 110 0 0
June 27......................................... 38 150 0 0
June 28......................................... 61 126 0 0
June 29......................................... 54 132 0 0
June 30......................................... 56 169 0 0
July 1.......................................... 52 137 0 0
July 5.......................................... 48 156 0 0
July 6.......................................... 51 142 0 0
July 7.......................................... 34 - 0 0
July 8.......................................... 33 121 0 0
July 9.......................................... 56 141 0 0
July 11......................................... 28 106 0 0
July 12......................................... 37 139 0 1
July 13......................................... 38 156 0 0
July 14......................................... 34 190 0 0
July 15......................................... 37 134 0 0
July 16......................................... 30 136 0 0
July 18......................................... 29 114 0 0
July 19......................................... 30 108 0 0
July 20......................................... 25 122 0 0
July 21......................................... 27 99 0 0
July 22......................................... 32 109 0 0
July 23......................................... 31 109 0 0
July 25......................................... 29 115 0 0
July 26......................................... 33 93 0 0
July 27......................................... 30 58 0 0
July 28......................................... 29 91 0 0
July 29......................................... 33 73 0 0
August 1........................................ 31 82 0 0
August 2........................................ 28 76 0 0
August 4........................................ 32 77 0 0
August 5........................................ 28 105 2 0
August 6........................................ 29 72 0 0
August 8........................................ 26 71 0 0
August 9........................................ 27 55 10 0
August 10....................................... 28 48 7 0
[[Page 31697]]
August 11....................................... 32 41 0 0
August 12....................................... 38 56 0 0
August 15....................................... 34 46 0 0
August 16....................................... 40 56 3 0
August 17....................................... 42 61 0 0
August 18....................................... 44 50 0 0
August 19....................................... 42 64 0 0
August 20....................................... 39 56 0 0
August 22....................................... 40 57 7 0
August 23....................................... 48 58 6 0
August 24....................................... 48 60 0 0
August 25....................................... 54 59 0 0
August 26....................................... 51 48 0 0
August 27....................................... 54 38 0 0
August 29....................................... 65 37 0 0
August 30....................................... 57 51 1 0
August 31....................................... 46 49 0 0
September 1..................................... 60 41 0 0
Daily Average................................... 52.4 87.4 0.6 0.02
----------------------------------------------------------------------------------------------------------------
* Dashes (-) refer to instance where researchers did not record occurrence information.
Between 2019 and 2022, census counts of elephant seals and harbor
seals were collected at PGL during the effective dates of the IHA (June
1-October 1). Across all 4 years, the average daily count was 52.4
elephant seals (Goley et al., 2021, BLM 2022). A large proportion of
the elephant seals present at PGL are uniquely tagged and dye stamped
to identify individuals and the same individuals were identified at the
PGL haulout on multiple days. Across all 4 years, the daily average of
harbor seals was 87.4. The harbor seals present at the PGL are not
tagged or otherwise clearly identifiable, but since harbor seals
typically show hauling site fidelity (Herder 1986, Yochem et al., 1987,
Dietz et al., 2012, Waring et al., 2016), researchers from HSU
hypothesize that the harbor seal colony at the PGL is made up of the
same individuals that move between Punta Gorda and other nearby
haulouts.
During the first year of construction (June-October 2022), PSOs
recorded the number of California and Steller sea lions present in the
PGL area. The daily average count of California sea lions was 0.6 and
the daily average count of Steller sea lions was 0.02.
Take Estimation
Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur for authorization.
To estimate the total number of pinnipeds that may be present at
the PGL and subject to behavioral disturbance from the PGL
stabilization project, BLM multiplied the daily count of each species
averaged across all years of available census data (52.4 elephant
seals, 87.4 harbor seals, 0.6 California sea lions, and 0.02 Steller
sea lions) by the maximum days of work at the PGL (122 days), for an
estimated total take events of 6,393 for northern elephant seals,
10,663 for harbor seals, 73 for California sea lions, and 2 for Steller
sea lions) taken by Level B harassment. This estimation assumes that
all animals present will exhibit behavioral responses that are
considered take (Levels 2 and Level 3 as described in Table 2). As
described above, many of the seals present at the PGL are suspected or
confirmed to be present across multiple days. Therefore, the above
estimated take numbers are considered to represent instances of take,
not necessarily the number of individual seals that may be taken. In
the case of Steller sea lion, two takes may not adequately account for
all instances of possible take that could occur should multiple
individuals enter the project area over the course of construction, or
one individual enter the project area on multiple occasions. As such
the take estimate for this species has been increased to 30 as
requested by the applicant.
Table 4--Authorized Take by Level B Harassment by Species and Percentage of Each Stock Affected
----------------------------------------------------------------------------------------------------------------
\a\ Authorized
Species Stock take by Level Stock Percent of
B harassment abundance stock
----------------------------------------------------------------------------------------------------------------
Northern elephant seal................ California breeding..... 6,393 187,386 3.4
Pacific harbor seal................... California.............. 10,663 30,968 34.4
California sea lion................... U.S..................... 73 257,606 0.03
Steller sea lion...................... Eastern U.S............. 30 77,149 0.04
----------------------------------------------------------------------------------------------------------------
\a\ The authorized take represents the estimated number of instances of take, which does not equate to the
number of individuals that may be taken.
[[Page 31698]]
Mitigation
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, NMFS
considers 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, and impact on
operations.
The following mitigation measures are required:
The work season has been planned to reduce the level of impact on
elephant and harbor seals. The effective dates of the IHA (June 1, 2022
through October 1, 2022) occur when the elephant seal presence is at
its lowest and any harbor seal pups that may be on site will be old
enough to be self-sufficient if the colony temporarily flushes into the
water. No elephant seal pups are expected to be present during the work
season.
To the extent possible, BLM will limit the daily number of vehicle
trips between the project area and the contractor's offshore camp where
additional tools and supplies will be stored in trailers or other
storage containers.
While accessing and departing the project site, trained PSOs will
monitor ahead of the vehicle(s) path, using binoculars if necessary, to
detect any marine mammals prior to approach to determine if mitigation
(e.g., change of course, slow down) is required. Vehicles will not
approach within 20 m of marine mammals. If animals remain in the access
path with no possible route to go around and maintain 20 m separation,
a PSO may walk toward the animals and intentionally flush them into the
water to allow the vehicle(s) to proceed. To the extent possible, if
multiple vehicles are traveling to the site, they should travel in a
convoy such that animals are not potentially harassed more than once
while the vehicles pass.
At least one PSO will arrive onsite 10 minutes ahead of contractors
each day to obtain counts in two separate locations viewing both
haulouts before work commences.
A fence will be erected to keep elephant seals from entering the
construction area to limit disturbance and prevent accidental injury
from vehicles and construction debris.
All helicopters associated with the project will slowly approach
the work site and allow all marine mammals present to flush into the
water before setting any hauled materials down on the ground.
BLM must cease or delay visits to the project site if a species for
which the number of takes that have been authorized for a species are
met, or if a species for which takes were not authorized, is observed.
Based on our evaluation of the applicant's planned measures, NMFS
has determined that the mitigation measures provide the means of
effecting the least practicable impact on the affected species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.
Monitoring and Reporting
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 while
conducting the activities. 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 activity; 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.
Visual Monitoring
At least one NMFS-approved PSO will travel to and from the
construction site ahead of the work crew each day and serve as a lead
monitor to record incidental take. PSOs will consist of BLM wildlife
biologists, biological technicians, and interns, as well as King Range
National Conservation Area staff. At least one PSO will monitor the
beach surrounding the PGL during all construction activities.
PSOs should have the following qualifications:
<bullet> Ability to conduct field observations and collect data
according to assigned protocols;
<bullet> Experience or training in the field identification of
marine mammals, including the identification of behaviors;
<bullet> Sufficient training, orientation, or experience with the
construction
[[Page 31699]]
operation to provide for personal safety during observations;
<bullet> Writing skills sufficient to prepare a report of
observations including but not limited to the number of species of
marine mammals observed; dates and times when construction activities
were conducted; dates, times, and reason for implementation of
mitigation (or why mitigation was not implemented when required); and
marine mammal behavior; and
<bullet> Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammal
observed in the area when necessary.
PSOs must record the following information for each day of work:
<bullet> Date, time, and access route of each visit to the work
site;
<bullet> Information on the weather, including tidal state and
estimated horizontal visibility;
<bullet> Composition of marine mammals observed, such as species,
sex, and life history stage (e.g., adult, sub-adult, pup);
<bullet> Estimated numbers (by species) of marine mammals observed
during the activities;
<bullet> Location of marine mammals observed during construction
activities.
<bullet> Marine mammal disturbances according to a three-point
scale of intensity (see Table 2)
<bullet> Behavioral responses or modifications of behaviors that
may be attributed to the specific activities, a description of the
specific activities occurring during that time (e.g., pedestrian,
vehicle, or helicopter approach), and any mitigation action taken; and
<bullet> Note the presence of any offshore predators (date, time,
number, and species).
Reporting
The BLM will report all observations of marked or tag-bearing
pinnipeds or carcasses and unusual behaviors, distributions, or numbers
of pinnipeds to the NMFS West Coast Regional Office.
A draft marine mammal monitoring report will be submitted to NMFS
within 90 days after the completion of each work season, or 60 days
prior to the requested issuance date of any future IHAs for projects at
the same location, whichever comes first. A final report must be
prepared and submitted within 30 days following resolution of any
comments on the draft report from NMFS. If no comments are received
from NMFS on the draft report, the draft report will be considered the
final report. The marine mammal report will include an overall
description of work completed, a narrative regarding marine mammal
sightings and behavioral response to construction activities, and
associated PSO data sheets.
In addition to submitting raw sightings data, the report must
include:
<bullet> Dates, and times (begin and end) of all marine mammal
monitoring;
<bullet> Construction activities occurring during each daily
observation period such as supply transport via ground and/or
helicopter, fence installation, trail maintenance, and demolition etc.;
<bullet> PSO locations during marine mammal monitoring; and
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), and any relevant weather conditions including fog, sun
glare, and estimated observable distance.
Prior to the commencement of activities, on each subsequent hour
during construction, and before finishing construction each day, PSOs
will record and report the following marine mammal observations:
<bullet> Name of the PSO who completed the observations and PSO
location and activity at the time of recording;
<bullet> Time of observation;
<bullet> The number (by species) of marine mammals observed during
the activities, by age and sex, if possible, and distances to
construction activities. Data may be reported according to groups in
cases where animals are concentrated together;
<bullet> The behavioral response of marine mammals (by species,
age, and sex as possible) to construction activities based on the 3
point scale (Table 2), including distances to construction activities
and descriptions of construction activities occurring at the time of
observance. When pinnipeds are concentrated in groups, closest distance
of the group to construction activities may be reported; and
<bullet> A description of the implementation and effectiveness of
the monitoring and mitigation measures of the IHA and full
documentation of methods, results, and interpretation pertaining to all
monitoring.
Separately, the same information should be recorded and reported
each time Level 2 or Level 3 harassment of marine mammals is observed.
Reporting Injured or Dead Marine Mammals
In the event that BLM or any other personnel involved in the
activities discover an injured or dead marine mammal, BLM will report
the incident to the NMFS Office of Protected Resources
(<a href="/cdn-cgi/l/email-protection#4111136f0815116f0c2e2f28352e33282f261324312e333532012f2e20206f262e37"><span class="__cf_email__" data-cfemail="6d3d3f4324393d432002030419021f04030a3f081d021f191e2d03020c0c430a021b">[email protected]</span></a>) and to the West Coast Regional
Stranding Coordinator as soon as feasible. If the death or injury were
clearly caused by a specific activity, BLM will immediately cease the
specified activities until NMFS is able to review the circumstances of
the incident and determine what, if any, additional measures are
appropriate to ensure compliance with the terms of the IHA. BLM will
not resume their activities until notified by NMFS. The report must
include the following information:
<bullet> Time, date, and location (latitude and longitude) of the
first discovery (and updated location information if known and
applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition of
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
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 impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), 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' 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 baseline (e.g., as
[[Page 31700]]
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).
To avoid repetition, the discussion of our analysis applies to all
the species listed in Table 4, given that the anticipated effects of
this activity on these different marine mammal stocks are expected to
be similar. There is little information about the nature or severity of
the impacts, or the size, status, or structure of any of these species
or stocks that will lead to a different analysis for this activity.
Activities associated with Phase 2 of the PGL stabilization project, as
described previously, have the potential to disturb or displace marine
mammals. Specifically, the specified activities may result in take, in
the form of Level B harassment (behavioral disturbance) from in-air
sounds and visual disturbance. Potential takes could occur if
individual marine mammals are present nearby when activity is
happening.
No injuries or mortalities are anticipated to occur as a result of
the PGL stabilization project and none are authorized. The risk of
marine mammal injury, serious injury, or mortality associated with the
construction project increases somewhat if disturbances occur during
pupping season. These situations present increased potential for
mothers and dependent pups to become separated and, if separated pairs
do not quickly reunite, the risk of mortality to pups (e.g., through
starvation) may increase. Separately, adult male elephant seals may
trample elephant seal pups if disturbed, which could potentially result
in the injury, serious injury, or mortality of the pups. However, the
planned activities will occur outside of the elephant seal pupping
season, therefore no elephant seal pups are expected to be present.
Although the timing of the activities will partially overlap with
harbor seal pupping season, the PGL is not a harbor seal rookery and
few pups are anticipated to be encountered during the planned
construction. In fact, the daily average of harbor seal pups present at
PGL during 2022 construction (June 22-September 1) was just 1.7. Harbor
seals are very precocious with only a short period of time in which
separation of a mother from a pup could occur. The planned activities
will occur late enough in the pupping season that any harbor seal pups
present will likely be old enough to keep up with their mother in
unlikely event of a stampede or other flushing event. The mitigation
measures (i.e., minimum separation distance, slow approaches, and
minimizing vehicle trips to the PGL) generally preclude the possibility
of behaviors, such as stampeding, that could result in extended
separation of mothers and dependent pups or trampling of pups.
Effects on individuals that are taken by Level B harassment, on the
basis of reports in the literature as well as monitoring from other
similar activities including phase 1 construction at this site, will
likely be limited to reactions such as alerts or movements away from
the lighthouse structure, including flushing into the water. Most
likely, individuals will simply move away from the acoustic or visual
stimulus and be temporarily displaced from the areas. In fact, during
the first year of construction at PGL elephant seals were not observed
flushing at any point during construction and were only observed moving
on 11 occasions. Harbor seals were observed flushing 255 times and
moving 322 times, which represents a small fraction (6 percent) of the
Level B harassment authorized for the project (BLM 2022).
Monitoring reports from similar activities (e.g., Point Blue
Conservation Science, 2020; University of California Santa Cruz
Partnership for Interdisciplinary Studies of Coastal Oceans, 2021) have
reported no apparently consequential behavioral reactions or long-term
effects on marine mammal populations as noted above. Repeated exposures
of individuals to relatively low levels of sound and visual disturbance
outside of preferred habitat areas are unlikely to significantly
disrupt critical behaviors or result in permanent abandonment of the
haulout site. Thus, even repeated Level B harassment of some small
subset of the overall stock is unlikely to result in any significant
realized decrease in viability for the affected individuals, and thus
will not result in any adverse impact to the stock as a whole. Level B
harassment will be reduced to the level of least practicable adverse
impact through use of mitigation measures described herein and, if
sound and visual disturbance produced by project activities is
sufficiently disturbing, animals are likely to simply avoid the area
while the activity is occurring.
Of the marine mammal species anticipated to occur in the planned
activity areas, none are listed under the ESA and there are no known
areas of biological importance in the project area. Taking into account
the planned mitigation measures, effects to marine mammals are
generally expected to be restricted to short-term changes in behavior
or temporary displacement from haulout sites. The Lost Coast area has
abundant haulout areas for pinnipeds to temporarily relocate, and
marine mammals are expected to return to the area shortly after
activities cease. No adverse effects to prey species are anticipated as
no work will occur in-water, and habitat impacts are limited and highly
localized, consisting of construction work at the existing lighthouse
station and the transit of vehicles and equipment along the access
route. 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 planned mitigation and
monitoring measures, NMFS finds that the total marine mammal take from
BLM's PGL stabilization project will not adversely affect annual rates
of recruitment or survival and, therefore, will have a negligible
impact on the affected species or stocks.
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 any of the species or stocks
through effects on annual rates of recruitment or survival:
<bullet> No serious injury or mortality, or Level A harassment is
anticipated or authorized;
<bullet> Few pups are expected to be disturbed, and will not be
abandoned or otherwise harmed by other seals flushing from the area;
<bullet> Effects of the activities will be limited to short-term,
localized behavioral changes;
<bullet> Nominal impacts to pinniped habitat are anticipated
<bullet> No biologically important areas have bene identified in
the project area;
<bullet> There is abundant suitable habitat nearby for marine
mammals to temporarily relocate; and
<bullet> Mitigation measures are anticipated to be effective in
minimizing the number and severity of takes by Level B harassment,
which are expected to be of short duration.
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 planned monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
the planned activity will have a negligible impact on all affected
marine mammal species or stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals
may
[[Page 31701]]
be authorized under section 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.
With the exception of Pacific harbor seals, the amount of take NMFS
proposes to authorize is well below one-third of any stock's best
population estimate (see Table 4), which NMFS considers to be small
relative to stock abundance. In fact, the annual take by Level B
harassment is less than 1 percent of stock abundance for both otariid
species that may be encountered in the project area (i.e., California
sea lion and Steller sea lion), and less than 4 percent of the northern
elephant seal stock's best population estimate. While the estimated
take of Pacific harbor seal equates to over 33 percent of the Pacific
harbor seal stock, these takes represent instances of take, not
necessarily the number of individual seals that may be taken. As such,
in all cases, including Pacific harbor seal, these take estimates are
considered conservative because NMFS assumes all takes are of different
individual animals which is likely not the case. Researchers from HSU
have used tags and dye stamps to identify individual elephant seals and
have verified the same individuals are hauling out at PGL. While harbor
seals are not marked or otherwise clearly identifiable, HSU researchers
hypothesize that the harbor seal colony at PGL is made up of the same
individuals that move between Punta Gorda and other nearby haulouts.
This is based on the fact that this species typically shows hauling
site fidelity (Herder 1986, Yochem et al., 1987, Dietz et al., 2012,
Waring et al., 2016). Therefore, many individuals that may be taken by
Level B harassment are likely to be the same across consecutive days,
despite PSOs counting them as separate takes throughout the duration of
the project.
Based on the analysis contained herein of the authorized activity
(including 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
stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks will not
have an unmitigable adverse impact on the availability of such species
or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (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, in this case with the West Coast
Regional Office.
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.
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.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs 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 will
preclude this categorical exclusion. Accordingly, NMFS has determined
that the issuance of the IHA qualifies to be categorically excluded
from further NEPA review.
Authorization
NMFS has issued an IHA to BLM for the potential harassment of small
numbers of four marine mammal species incidental to the Phase 2 of the
PGL Stabilization Project repair in Humboldt County, California from
June 1 through September 30, 2023, that includes the previously
explained mitigation, monitoring, and reporting requirements.
Dated: May 10, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-10640 Filed 5-17-23; 8:45 am]
BILLING CODE 3510-22-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on May 18, 2023.
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.