Notice2023-16286
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
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Published
August 1, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS received a request from the California Department of Fish and Wildlife (CDFW) for the renewal of their currently active incidental harassment authorization (IHA) to take marine mammals incidental to restoration activity associated with the Elkhorn Slough Tidal Marsh Restoration Project, Phase III, in Monterey County, California. These activities consist of activities that are covered by the current authorization but will not be completed prior to its expiration. Pursuant to the Marine Mammal Protection Act, prior to issuing the currently active 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.
Full Text
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<title>Federal Register, Volume 88 Issue 146 (Tuesday, August 1, 2023)</title>
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[Federal Register Volume 88, Number 146 (Tuesday, August 1, 2023)]
[Notices]
[Pages 50113-50117]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16286]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD188]
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; request for comments on proposed renewal incidental
harassment authorization.
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SUMMARY: NMFS received a request from the California Department of Fish
and Wildlife (CDFW) for the renewal of their currently active
incidental harassment authorization (IHA) to take marine mammals
incidental to restoration activity associated with the Elkhorn Slough
Tidal Marsh Restoration Project, Phase III, in Monterey County,
California. These activities consist of activities that are covered by
the current authorization but will not be completed prior to its
expiration. Pursuant to the Marine Mammal Protection Act, prior to
issuing the currently active 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 August
16, 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#d29b8682fcb1beb7a4b7bca1a6bbbcb792bcbdb3b3fcb5bda4"><span class="__cf_email__" data-cfemail="0f465b5f216c636a796a617c7b66616a4f61606e6e21686079">[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. 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 below.
[[Page 50114]]
FOR FURTHER INFORMATION CONTACT: Alyssa Clevenstine, Office of
Protected Resources, NMFS, (301) 427-8401.
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 (86 FR 43204, August 6, 2021), 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.
<bullet> Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
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="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">https://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 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
NAO 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 September 16, 2021, NMFS issued an IHA to CDFW to take marine
mammals incidental to Phase III of the Elkhorn Slough Tidal Marsh
Restoration Project in Monterey County, CA, effective from September
16, 2021 through September 15, 2022 (86 FR 52644). On July 12, 2022,
CDFW informed NMFS that the project was delayed and none of the work
identified in the initial IHA (i.e., restoration work at the Seal Bend
Restoration Area) had occurred, and submitted a request for re-issuance
of the initial IHA with new effective dates of September 16, 2022,
through September 15, 2023 (87 FR 56631, September 15, 2022). On July
6, 2023, NMFS received an application for the renewal of the 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, and reissued, authorization but will not be completed
prior to its expiration. As required, the applicant also provided
preliminary monitoring results which confirm that the applicant has
implemented the required mitigation and monitoring, and which also show
that no impacts of a scale or nature not previously analyzed or
authorized have occurred as a result of the activities conducted.
[[Page 50115]]
Description of the Specified Activities and Anticipated Impacts
Phase III of CDFW's construction Elkhorn Slough Tidal Marsh
Restoration Project consists of relocating soil from an upland area
through the use of heavy earth-moving equipment to the Seal Bend
Restoration Area, and will restore 28.6 acres (11.57 hectares) within a
12 month period. The planned activities (including mitigation,
monitoring, and reporting) and anticipated impacts on the affected
stocks are the same as those analyzed and authorized through the
initial IHA.
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 (Phoca vitulina richardii). A
description of the methods and inputs used to estimate take anticipated
to occur and, ultimately, the take that was authorized is included 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 under the initial IHA. No work was completed under the initial
IHA and only 15 days of work have been completed since reissuance of
the initial IHA.
This renewal request is to cover a subset of the activities
described for the initial IHA that will not be completed during the
effective IHA period. CDFW plans to continue construction activities
between September 2023 and September 2024. CDFW estimates it will take
225 days to complete construction necessary to support restoration of
the Seal Bend Restoration Area, as only 15 days of work out of the 240
days of planned construction are expected to be completed within the
effective dates of the currently active IHA.
The likely or possible impacts of CDFW'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
presence of construction equipment and personnel. Acoustic stressors
include effects of heavy equipment operation during soil excavation,
transport, and placement. The effects of airborne noise and visual
disturbance from CDFW'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 43204, August 6, 2021;
86 FR 52644, September 22, 2021). As previously mentioned, this request
is for a subset of the activities anticipated in the initial, and
reissued, IHA that would not be completed prior to its expiration. 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. CDFW is requesting a renewal IHA
for relocating soil from an upland area through the use of heavy earth-
moving equipment. The proposed renewal would be effective for a period
not exceeding 1 year from the date of expiration of the reissued IHA.
The proposed renewal IHA would be effective from September 16, 2023
through September 15, 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 43204,
August 6, 2021). NMFS has reviewed the preliminary monitoring data from
the reissued 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 43204, August 6, 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 43204, August 6,
2021). NMFS has reviewed the preliminary monitoring data from the
reissued 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 notice of the proposed
IHA for the initial authorization (86 FR 43204, August 6, 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 unchanged from the initial IHA. Similarly,
the stock taken, methods of take, daily take estimates, and types of
take remain unchanged from the initial IHA. The number of takes
proposed for authorization in this renewal are a subset of the initial
authorized takes that represent the amount of activity left to
complete. These takes, which reflect the lower number of remaining days
of work (225 days), 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 Scientific name Stock Proposed take stock
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Harbor seal....................... Phoca vitulina California.......... 1,800 5.8
richardii.
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[[Page 50116]]
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 Federal Register notice announcing the issuance of the
initial IHA, and the discussion of the least practicable adverse impact
included in that document and the notice of the proposed IHA remains
accurate. The following measures are proposed for this renewal:
<bullet> Construction work must occur only during daylight hours
and should environmental conditions deteriorate such that marine
mammals within the entire shutdown zone would not be visible (e.g.,
fog, heavy rain, smoke), construction must be delayed until the
Protected Species Observer (PSO) is confident marine mammals within the
shutdown zone could be detected;
<bullet> CDFW must fulfill visual monitoring requirements, which
includes the use of NMFS-approved PSOs and the establishment of a Level
B harassment zone within 300 meters (m) of all construction activities;
<bullet> A 30 minute pre-construction clearance period must occur
prior to the start of ramp-up (e.g., ramp up by moving around the
project area and starting equipment sequentially) and construction
activities;
<bullet> CDFW must shutdown heavy machinery work if a marine mammal
comes within 10 m;
<bullet> During harbor seal pupping season (March through July),
CDFW must not initiate construction activities within 300 m of a mom/
pup pair that is hauled out, or within 100 m of a mom/pup pair in the
water. If there is a gap in construction activities of more than an
hour or if construction moves to a different area, this initiation
protocol must again be implemented. During site containment activities
that are underway, heavy machinery must not approach closer than 100 m
of where mothers and pups are actively hauled out. If a pup less than
one week old (neonate) comes within 20 m of where heavy machinery is
working, construction activities in that area must be shut down or
delayed until the pup has left the area. In the event that a pup less
than one week old remains within those 20 m, NMFS will be consulted to
determine the appropriate course of action;
<bullet> Construction activities 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 the
harassment zone;
<bullet> CDFW must conduct a census of marine mammals in the
project area and the area surrounding the project at least 30 minutes
prior to the beginning of construction on monitoring days, and again 30
minutes after the completion of construction activities. CDFW must also
conduct hourly counts of animals hauled out and in the water within at
least the Level B harassment zone, as well as reactions observed in
relation to construction activities;
<bullet> CDFW 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> CDFW must prepare and submit final report within 30 days
following resolution of comments on the draft report from NMFS;
<bullet> CDFW must submit all PSO datasheets and/or raw sighting
data (in a separate file (e.g., Microsoft Excel or similar) from the
Final Report referenced immediately above); and,
<bullet> CDFW must report injured or dead marine mammals.
Comments and Responses
As noted previously, NMFS published a notice of a proposed IHA (86
FR 43204, August 6, 2021) and solicited public comments on both our
proposal to issue the initial IHA for construction activities
associated with Phase III of the Elkhorn Slough Tidal Marsh Restoration
Project 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 or
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 CDFW's activities would have a negligible impact on
the affected species or stock 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 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) 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, and;
(5) appropriate monitoring and reporting requirements are included.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally whenever we propose to authorize take for
endangered or threatened species.
No incidental take of ESA-listed species is proposed for
authorization or expected to result from this activity. Therefore, NMFS
has determined that formal consultation under section 7 of the ESA is
not required for this proposed action.
Proposed Renewal IHA and Request for Public Comment
As a result of these preliminary determinations, NMFS proposes to
issue a renewal IHA to CDFW for conducting construction activities
associated with Phase III of the Elkhorn Slough Tidal Marsh Restoration
Project in Monterey County, CA, from September 16, 2023, through
September 15, 2024, 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/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</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
[[Page 50117]]
help inform our final decision on the request for MMPA authorization.
Dated: July 27, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-16286 Filed 7-31-23; 8:45 am]
BILLING CODE 3510-22-P
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