Notice2023-16604
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Phase II of the Richmond-San Rafael Bridge Restoration Project
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
August 4, 2023
Effective
August 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 California Department of Transportation (Caltrans) to incidentally harass marine mammals during construction activities associated with the Richmond-San Rafael Bridge Restoration project in Richmond, CA.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 149 (Friday, August 4, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 149 (Friday, August 4, 2023)]
[Notices]
[Pages 51778-51784]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16604]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD172]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Phase II of the Richmond-San Rafael
Bridge Restoration Project
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
-----------------------------------------------------------------------
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
the California Department of Transportation (Caltrans) to incidentally
harass marine mammals during construction activities associated with
the Richmond-San Rafael Bridge Restoration project in Richmond, CA.
DATES: This authorization is effective from August 1, 2023 through
March 30, 2024.
ADDRESSES: 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/action/incidental-take-authorization-california-department-transportations-richmond-san-rafael">https://www.fisheries.noaa.gov/action/incidental-take-authorization-california-department-transportations-richmond-san-rafael</a>. In case of problems accessing these documents,
please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Craig Cockrell, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are 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 December 28, 2022, NMFS received a request from Caltrans for an
IHA to take marine mammals incidental to construction activities to
restore portions of the Richmond-San Rafael Bridge. Following NMFS'
review of the application, Caltrans submitted a revised version on
April 14, 2023, which was deemed adequate and complete on May 11, 2023.
Caltrans' request is for take of harbor seals (Phoca vitulina) by Level
B harassment only. Neither Caltrans nor NMFS expect serious injury or
mortality to result from this activity and, therefore, an IHA is
appropriate. There are no changes from the proposed authorization to
the final authorization.
Description of the Specified Activity
Overview
Caltrans will conduct construction activities to restore a portion
of the Richmond-San Rafael Bridge. Prior to restoration work Caltrans
will install a debris containment system to ensure contaminants from
construction are not deposited into San Francisco Bay. During the
deployment and retrieval of the containment system disturbance (i.e.,
Level B harassment) of harbor seals may occur. Once the debris
containment system is deployed the restoration work on the bridge is
not expected to result in any takes of marine mammals, as the
containment system is expected to shield seals from disturbance as a
result of visual and acoustic stimuli. Takes of harbor seals will occur
at the nearby Castro Rocks haulout. The Richmond-San Rafael Bridge is
located in the northern portion of San Francisco Bay and is located
between Richmond, CA and San Rafael, CA. The debris
[[Page 51779]]
containment system will be used on Piers 52-57. The deployment and
retrieval of the containment system will only occur during between
August 1 and March 30 to avoid pupping and molting seasons of harbor
seals.
It is expected that the debris containment system will take up to
20 days to deploy and 10 days to remove (30 total days). The debris
containment system will only be deployed during daylight hours but
restoration work will occur throughout the day and night following
deployment.
A detailed description of the planned construction project is
provided in the Federal Register notice for the proposed IHA (88 FR
41920, June 28, 2023). Since that time, no changes have been made to
the planned activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
description of the specific activity.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Caltrans was
published in the Federal Register on June 28, 2023 (88 FR 41920). That
notice described, in detail, Caltrans' activity, the marine mammal
species that may be affected by the activity, and the anticipated
effects on marine mammals. In that notice, we requested public input on
the request for authorization described therein, our analyses, the
proposed authorization, and any other aspect of the notice of proposed
IHA, and requested that interested persons submit relevant information,
suggestions, and comments. During the 30-day public comment period,
NMFS did not receive any 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 and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions in materials that are referenced in the document,
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 anticipated or 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. All managed stocks in this region are assessed in
NMFS' Pacific SARs, and NMFS has reviewed the most current information
for the species. All values presented in Table 1 are the most recent
available at the time of publication and are available online at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://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--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Harbor seal......................... Phoca vitulina......... California............ N 30,968 (N/A, 27,348, 1,641 43
2012).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (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="https://www.nmfs.noaa.gov/pr/sars/">https://www.nmfs.noaa.gov/pr/sars/</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.
A detailed description of the species likely to be affected by the
construction project, including a brief introduction to the affected
stock 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 41920, June 28,
2023); since that time, we are not aware of any changes in the status
of the stock; therefore, a detailed description is not provided here.
Please refer to that Federal Register notice for the description.
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
The effects of the installation and removal of the debris
containment system from Caltrans' construction activities have the
potential to result in behavioral harassment of marine mammals in the
vicinity of the survey area. The notice of proposed IHA (88 FR 41920,
June 28, 2023) included a discussion of the effects of the visual
disturbance of the installation and removal of the debris containment
system on marine mammals and the potential effects of that activity on
marine mammals and their habitat. That information and analysis is not
repeated here; please refer to the notice of proposed IHA (88 FR 41920,
June 28, 2023).
[[Page 51780]]
Estimated Take of Marine Mammals
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 determination.
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 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 are by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to the novel stimulus of the installation and
removal of the debris containment system. Based on the nature of the
activity, Level A harassment is neither anticipated nor authorized.
As described previously, no serious injury or mortality is
authorized for this activity. Below, we describe how the take numbers
are estimated.
Marine Mammal Occurrence and Take Estimates
In this section, we provide information about the occurrence of
marine mammals, including density or other relevant information, which
will inform the take calculations. We will also describe how this
information is brought together to produce a quantitative take estimate
for each species.
Castro Rocks is the largest harbor seal haulout site in northern
San Francisco Bay and is the second largest pupping site in San
Francisco Bay (Kopec and Harvey 1995). The harbor seal pupping season
is from April to July in San Francisco Bay. Seals are present on the
haulout year round during medium to low tides (Green et al., 2004).
Recent observations at the Castro Rocks haulout site reported
approximately 300 seals during the pupping and molting seasons (Codde
and Allen, 2020). The highest mean number of harbor seals observed at
Castro Rocks during recent annual National Park Service surveys was 237
seals observed in 2019 (Codde and Allen, 2013, 2015, 2017, 2020; Codde
2020).
Caltrans expects to harass approximately 300 harbor seals per day
during the installation and removal of the debris containment system.
It is expected to take 30 days for Caltrans to complete this process.
Based on these assumptions Caltrans requested authorization of 9,000
takes by Level B harassment of harbor seals while hauled out. NMFS
concurs with this request.
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.
Mitigation for Marine Mammals and Their Habitat
Caltrans must implement the following measures during Phase II of
the Richmond-San Rafael Bridge Restoration Project:
(1) Seasonal Work Restrictions: installation or removal of the
debris containment system must not occur between Piers 52-57 from April
1-July 31 due to the pupping and molting period of harbor seals.
(2) Work must not take place outside of the containment system on
the bridge between Piers 52-57 from April 1 to July 31.
(3) A non-disturbance buffer will be established within 400 feet
(121 meters) of Castro Rocks on the south side of bridge.
(4) Staging of barges will not be allowed in the project area.
(5) Routes for watercraft to reach work locations will be
predetermined in consultation with the project biologist to avoid
harassment or take of marine mammals hauled out at Castro Rocks.
(6) No piles may be driven or vibrated to create staging locations
for any watercraft. Barges and vessels will be tethered to the existing
concrete bridge piers.
Based on our evaluation of the applicant's 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
[[Page 51781]]
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.
Caltrans will monitor to collect data on marine mammal behavior,
counts of the individuals observed, and the frequency of the
observations. Caltrans will collect sighting data and observations on
behavioral responses to construction for marine mammal species observed
in the region of activity during the period of construction. All
observers will be trained in the identification of marine mammals and
marine mammal behaviors.
<bullet> Protected species observers (PSOs) must be independent
observers (i.e., not construction personnel). All PSOs must have the
ability to conduct field observations and collect data according to
assigned protocols, be experienced in field identification of marine
mammals and their behaviors. Caltrans must submit their resumes to NMFS
for approval;
<bullet> Biological monitoring must occur 5 days prior to the
Project's start date, to establish baseline observations.
<bullet> Observation periods will encompass different tide levels
and hours of the day. Monitoring of marine mammals around the
construction site will be conducted using binoculars as necessary.
<bullet> The location of the PSOs will be at a monitoring platform
positioned on Pier 55 of the Richmond-San Rafael Bridge, at the closest
pier of the Richmond-San Rafael Bridge to Castro Rocks. Pier 55 is
approximately 21 meters from the nearest rock at Castro Rocks harbor
seal colony.
Data Collection
Caltrans will record detailed information about counts and
behaviors of all marine mammal species observed, times of observations,
construction activities that occurred, any visual disturbances, and
weather conditions, with particular focus on harbor seals at Castro
Rocks. PSOs will use approved data forms to record the following
information:
<bullet> Observation position and start and end times of
observations;
<bullet> Weather conditions (sunny/cloudy, wind speed, fog,
visibility), temperature, tide level, current, and sea state;
<bullet> Species counts (including with or without pup, and, if
possible, sex and age classes of any observed marine mammal species;
<bullet> Identifying marks or color (scars, red pelage, etc.);
<bullet> Position relative to Richmond-San Rafael bridge (distance
and direction);
<bullet> Movement (direction and relative speed);
<bullet> Behavior (logging (resting at the surface), swimming,
spyhopping (raising above the water surface to view the area),
foraging, etc.);
<bullet> Duration of sighting or times of multiple sightings of the
same individual; and
<bullet> Details of any marine mammal behavioral disturbances,
including information regarding the activity (e.g. disturbance from the
containment system installation and removal or construction related
disturbance within or outside the containment system), the type of
behavioral response to the disturbance (flushing or head posturing),
and the rate of disturbance on Castro Rocks. Disturbance events must be
categorized according to the 3-point scale as shown in Table 2.
Table 2--Levels of Pinniped Behavioral Disturbance
------------------------------------------------------------------------
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 observations of disturbance Levels 2 and 3 are recorded as takes.
Reporting Measures
Caltrans shall submit a draft report to NMFS within 90 days of the
completion of marine mammal monitoring, or 60 days prior to the
issuance of any subsequent IHA for this project (if required),
whichever comes first. The annual report will detail the monitoring
protocol, summarize the data recorded during monitoring, and estimate
the number of marine mammals that may have been harassed. If no
comments are received from NMFS within 30 days, the draft final report
will become final. If comments are received, a final report must be
submitted up to 30 days after receipt of comments. All PSO datasheets
and/or raw sighting data must be submitted with the draft marine mammal
report.
Reports shall contain the following information:
<bullet> Dates and times (begin and end) of all marine mammal
monitoring;
<bullet> Construction activities occurring during each daily
observation period including: (a) what type of restoration work is
being completed, and (b) the total duration of work completed;
<bullet> PSO locations during monitoring; and
<bullet> Environmental conditions during monitoring periods (at
beginning and end of PSO shift and whenever conditions change
significantly), including sea state and any other relevant weather
conditions including cloud cover, fog, sun glare, and overall
visibility to the horizon, and estimated observable distance.
Upon observation of a marine mammal, the following information must
be reported:
[[Page 51782]]
<bullet> Name of PSO who sighted the animal(s) and PSO location and
activity at time of sighting;
<bullet> Time of sighting;
<bullet> Identification of the animal(s) (e.g., genus/species,
lowest possible taxonomic level, or unidentified), and PSO confidence
in identification;
<bullet> Distance and location of each observed marine mammal
relative to the bridge restoration work;
<bullet> Estimated number of animals by species (min/max/best
estimate);
<bullet> Estimated number of animals by cohort (adults, pups, and
group composition, etc.);
<bullet> Description of any marine mammal behavioral observations
(e.g., observed behaviors such as feeding or traveling), including an
assessment of behavioral responses thought to have resulted from the
activity (e.g., no response or changes in behavioral state such
flushing or head posturing); and
<bullet> Detailed information about implementation of any
mitigation measures, a description of specified actions that ensured,
and resulting changes in behavior of the animal(s), if any.
Reporting Injured or Dead Marine Mammals
In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by the IHA
(if issued), such as an injury (Level A harassment), serious injury or
mortality (e.g., ship-strike, gear interaction, and/or entanglement),
Caltrans will immediately cease the specified activities and
immediately report the incident to the Office of Protected Resources
(<a href="/cdn-cgi/l/email-protection#a2f2f08cebf6f28cefcdcccbd6cdd0cbccc5f0c7d2cdd0d6d1e2cccdc3c38cc5cdd4"><span class="__cf_email__" data-cfemail="2474760a6d70740a694b4a4d504b564d4a437641544b565057644a4b45450a434b52">[email protected]</span></a>) and the West Coast Regional
Stranding Coordinator. The report will include the following
information:
<bullet> Time, date, and location (latitude/longitude) of the
incident;
<bullet> Name and type of vessel involved (if applicable);
<bullet> Vessel's speed during and leading up to the incident (if
applicable);
<bullet> Description of the incident;
<bullet> Status of all sound source used in the 24 hours preceding
the incident;
<bullet> Water depth;
<bullet> Environmental conditions (e.g., wind speed and direction,
sea state, cloud cover, and visibility);
<bullet> Description of all marine mammal observations in the 24
hours preceding the incident;
<bullet> Species identification or description of the animal(s)
involved;
<bullet> Fate of the animal(s); and
<bullet> Photographs or video footage of the animal(s) (if
equipment is available).
Activities will not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS will work with Caltrans to
determine necessary actions to minimize the likelihood of further
prohibited take and ensure MMPA compliance. Caltrans will not be able
to resume their activities until notified by NMFS via letter, email, or
telephone.
In the event that Caltrans discovers an injured or dead marine
mammal, and the lead PSO determines that the cause of the injury or
death is unknown and the death is relatively recent (i.e., in less than
a moderate state of decomposition as described in the next paragraph),
Caltrans will immediately report the incident to the Office of
Protected Resources, NMFS, and the West Coast Regional Stranding
Coordinator. The report will include the same information identified in
the section above. Activities will be able to continue while NMFS
reviews the circumstances of the incident. NMFS will work with Caltrans
to determine whether modifications in the activities are appropriate.
In the event that Caltrans discovers an injured or dead marine
mammal, and the lead PSO determines that the injury or death is not
associated with or related to the activities authorized in the IHA
(e.g., previously wounded animal, carcass with moderate to advanced
decomposition, or scavenger damage), Caltrans will report the incident
to Office of Protected Resources, NMFS, and West Coast Regional
Stranding Coordinator, within 24 hours of the discovery. Caltrans will
provide photographs or video footage (if available) or other
documentation of the stranded animal sighting to NMFS and the Marine
Mammal Stranding Network. Construction activities will be permitted to
continue.
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 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).
NMFS does not expect Caltrans' construction activities to cause
long-term behavioral disturbance that will negatively impact an
individual animal's fitness, or result in injury, serious injury, or
mortality. Although the installation and deployment of the debris
containment system may disturb harbor seals hauled out at Castro Rocks,
NMFS expects those impacts to be of short duration (20 days for
installation and 10 day for removal) with minimal effect to the
animals. Minor and brief responses including short-duration startle
reactions, are not likely to constitute disruption of behavioral
patterns, such as migration, nursing, breeding, feeding, or sheltering.
The harbor seal stock for which incidental take is authorized is
not listed as threatened or endangered under the ESA or determined to
be strategic or depleted under the MMPA. The mitigation and monitoring
measures, including the establishment of seasonal work schedules, a
non-disturbance buffer around Castro Rocks, and watercraft routes, will
minimize disturbance of seals on Castro Rocks and make Level A
harassment unlikely. Therefore, the mitigation and monitoring measures
are expected to eliminate the potential for Level A harassment as well
as reduce the amount and intensity for Level B harassment. The
construction activities analyzed here are similar to, or less impactful
than, numerous construction activities conducted in other similar
locations which have occurred with no reported injuries or mortality to
marine mammals, and no known long-term adverse consequences from
behavioral harassment.
Anticipated and authorized takes are expected to be limited to
short-term
[[Page 51783]]
Level B harassment (behavioral disturbance) as construction activities
will occur over the course of 30 days. Effects on individuals taken by
Level B harassment, based upon reports in the literature as well as
monitoring from other similar activities, may include increased
swimming speeds, increased surfacing time, or decreased foraging (e.g.,
Thorson and Reyff 2006). Individual animals, even if taken multiple
times, would likely move away from the visual disturbance of the debris
containment system installation and removal. Repeated exposures of
individuals to this visual disturbance that could cause Level B
harassment are unlikely to considerably disrupt foraging behavior or
result in significant decrease in fitness, reproduction, or survival
for the affected individuals. In all, there will be no adverse impacts
to the stock as a whole.
There is no unusual mortality event (UME) currently associated with
the harbor seal stock and there are no Biologically Important Areas or
known important habitat, aside from Castro Rocks itself, within the
project area. While essential fish habitat (EFH) for several fish
species does exist in the project area, the activities will not modify
existing marine mammal habitat since there is no in-water work. This
construction activity should not impact marine mammals' foraging
opportunities.
In summary and as described above, the following factors 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 is anticipated or
authorized;
<bullet> Anticipated impacts of Level B harassment include
temporary behavior modifications;
<bullet> Short duration and intermittent nature of the debris
containment system deployment and removal;
<bullet> The specified project area is very small relative to the
overall habitat ranges of the species and do not include habitat areas
of special significance (Biologically Important Areas);
<bullet> The lack of anticipated significant or long-term effects
to marine mammal habitat;
<bullet> The presumed efficacy of the mitigation measures in
reducing the effects of the specified activity; and,
<bullet> Monitoring reports from other construction work in San
Francisco Bay have documented little to no effect on individuals of the
same species impacted by the specified activities.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the
activity will have a negligible impact on the affected marine mammal
stock.
Small Numbers
As noted previously, only take of small numbers of marine mammals
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
The amount of take NMFS authorizes in the IHA is below one-third of
the estimated stock abundance for harbor seals (see Estimated Take of
Marine Mammals). The take percentage of the estimated stock of harbor
seals, if all estimated take events are assumed to occur to new
individuals, is 29.1 percent. However, this take estimate is assumed to
represent repeated takes of the same individuals over time and,
therefore, the take estimate represents a significantly smaller actual
percentage of the total stock. It is expected that approximately 300
harbor seals are hauled out on Castro Rocks on any given day during the
project. The majority of these 300 individuals are expected to be
comprised of the same animals during the duration of the project.
Therefore, it can be reasonably expected that the percentage of
individuals of the overall stock of harbor seals is closer to
approximately 1 percent.
Based on the analysis contained herein of the activity (including
the mitigation and monitoring measures) and the anticipated take of
marine mammals, NMFS finds that small numbers of marine mammals will be
taken relative to the population size of the affected species or
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 (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 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 evaluate our proposed action (i.e., the issuance of an IHA)
and alternatives 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 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 has determined that the
issuance of this IHA qualifies to be categorically excluded from
further NEPA review.
Authorization
NMFS has issued an IHA to Caltrans for the potential harassment of
small numbers of harbor seals incidental to the Phase II of the
Richmond-San Rafael Bridge Restoration Project in Richmond, CA, that
includes the previously explained mitigation, monitoring and reporting
requirements.
[[Page 51784]]
Dated: July 31, 2023
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-16604 Filed 8-1-23; 4:15 pm]
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 August 4, 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.