Notice2024-04400
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Phase II of the Richmond-San Rafael Bridge Restoration Project in Richmond, California
Primary source
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Published
March 4, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS received a request from the California Department of Transportation (Caltrans) for the renewal of their currently active incidental harassment authorization (IHA) to take marine mammals incidental to Phase II of the Richmond-San Rafael Bridge Restoration Project in Richmond, California. Caltrans' activities will not be completed prior to the IHA's expiration. Pursuant to the Marine Mammal Protection Act (MMPA), 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 89 Issue 43 (Monday, March 4, 2024)</title>
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[Federal Register Volume 89, Number 43 (Monday, March 4, 2024)]
[Notices]
[Pages 15549-15552]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-04400]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD736]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Phase II of the Richmond-San Rafael
Bridge Restoration Project in Richmond, 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
Transportation (Caltrans) for the renewal of their currently active
incidental harassment authorization (IHA) to take marine mammals
incidental to Phase II of the Richmond-San Rafael Bridge Restoration
Project in Richmond, California. Caltrans' activities will not be
completed prior to the IHA's expiration. Pursuant to the Marine Mammal
Protection Act (MMPA), 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 March
19, 2024.
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#82cbd6d2ace1ede1e9f0e7eeeec2ecede3e3ace5edf4"><span class="__cf_email__" data-cfemail="074e5357296468646c75626b6b476968666629606871">[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, 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/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 contact
the analyst 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
[[Page 15550]]
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 promulgated or, if the taking is limited to harassment, an IHA 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''). NMFS must also prescribe requirements pertaining to
monitoring and reporting of such takings. The definition of key terms
such as ``take,'' ``harassment,'' and ``negligible impact'' can be
found in the MMPA and the NMFS's implementing regulations (see 16
U.S.C. 1362 et seq.; 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 IHA, 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 of an 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); and
<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; and
3. Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45
days), with direct notice by email, phone, or postal service to
commenters on the initial IHA, is provided to allow for any additional
comments on the proposed renewal. A description of the renewal process
may be found on our website at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>. Any
comments received on the potential renewal, along with relevant
comments on the initial IHA, have been considered in the development of
this proposed IHA renewal, and a summary of agency responses to
applicable comments is included in this notice. NMFS will consider any
additional public comments prior to making any final decision on the
issuance of the requested renewal, and agency responses will be
summarized in the final notice of our decision.
National Environmental Policy Act
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental take authorizations with no
anticipated serious injury or mortality) of the Companion Manual for
NOAA Administrative Order 216-6A, which do not individually or
cumulatively have the potential for significant impacts on the quality
of the human environment and for which we have not identified any
extraordinary circumstances that would preclude this categorical
exclusion. Accordingly, NMFS determined that the issuance of the
initial IHA qualified to be categorically excluded from further
National Environmental Policy Act review. NMFS has preliminarily
determined that the application of this categorical exclusion remains
appropriate for this renewal IHA.
History of Request
On July 31, 2024, NMFS issued an IHA to Caltrans to take marine
mammals incidental to Phase II of the Richmond-San Rafael Bridge
Restoration Project in Richmond, California (88 FR 51778, August 4,
2023), effective from August 1, 2023 through March, 30 2024. On
February 7, 2024, NMFS received an application for the renewal of that
initial IHA. As described in the application for renewal IHA, the
activities for which incidental take is requested consist of activities
that are covered by the initial authorization but will not be completed
prior to its expiration. As required, the applicant also provided a
preliminary monitoring report which confirms that the applicant has
implemented the required mitigation and monitoring, and which also
shows that no impacts of a scale or nature not previously analyzed or
authorized have occurred as a result of the activities conducted.
Description of the Specified Activities and Anticipated Impacts
In the initial IHA Caltrans proposed to conduct construction
activities to restore a portion of the Richmond-San Rafael Bridge.
Prior to restoration work Caltrans would install a debris containment
system to ensure contaminants from construction are not deposited into
San Francisco Bay. Caltrans and NMFS concluded that during the
deployment and retrieval of the containment system disturbance (i.e.,
Level B harassment) may occur to harbor seals hauled out at Castro
Rocks. Castro Rocks is an important haulout location for harbor seals
that is close to the portion of the Richmond-San Rafael Bridge where
construction work is occurring.
Under the initial IHA Caltrans took 19 days to deploy the debris
containment system and during this time protected species observers
(PSOs) did not observe any disturbance of harbor seals
[[Page 15551]]
hauled out at Castro Rocks. Caltrans will be unable to remove the
debris containment system before the expiration of the initial IHA.
Therefore, this renewal would allow for the removal of the debris
containment system and completion of the restoration project. NMFS
authorized 9,000 takes of harbor seals by Level B harassment under the
initial IHA, for the installation and removal of the debris containment
system. This renewal would authorize a portion of the number of takes
authorized in the initial IHA based on the days remaining to complete
the work.
All documents related to the initial IHA and the applicants request
for renewal are available on our website 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>
Detailed Description of the Activity
A detailed description of the demolition and construction
activities for which take is proposed here may be found in the Federal
Register notices of the Proposed IHA (88 FR 41920, June 28, 2023) and
Final IHA (88 FR 51778, August 4, 2023) for the initial authorization.
The location, timing, and nature of the activities, including the types
of equipment planned for use, are identical to those described in the
previous notices. Under the initial IHA the removal of the debris
containment system will not be completed before the IHA expires. This
renewal would allow for the removal of the containment system and
completion of the restoration work on the Richmond-San Rafael Bridge.
The proposed renewal would be effective for a period not exceeding 1
year from the date of expiration of the initial IHA.
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
Federal Register notice of the Proposed IHA (88 FR 41920, June 28,
2023) for the initial authorization. NMFS has reviewed the monitoring
data from the initial IHA, 2023 draft Stock Assessment Reports,
information on relevant Unusual Mortality Events, and other scientific
literature, and determined there is no new information that 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.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat may be found in the Federal Register
notice of the Proposed IHA (88 FR 41920, June 28, 2023) for the initial
authorization. NMFS has reviewed the monitoring data from the initial
IHA, recent draft Stock Assessment Reports, information on relevant
Unusual Mortality Events, and other scientific literature, and
determined that there is no new information that affects our initial
analysis of impacts on marine mammals and their habitat.
Estimated Take
The initial IHA assumed a daily occurrence rate of 300 harbor seals
per day on Castro Rocks. Caltrans expected the installation and removal
of the debris containment system to take approximately 30 days.
Therefore, the initial IHA authorized a total of 9,000 takes by Level B
harassment to complete the installation and removal of the debris
containment system. Under the initial IHA Caltrans installed the debris
containment system over a 19 day period and no takes by Level B
harassment of harbor seals occurred during that time. The removal of
the debris containment system will not be completed before the initial
IHA expires.
This IHA renewal would authorize take by Level B harassment of
harbor seals during the removal of the debris containment system. It is
expected to take a total of 10 days to remove the debris containment
system once the construction activities are completed. NMFS assumes a
similar daily occurrence rate of 300 harbor seals per day on Castro
Rocks which over the 10 days of remaining work would equate to a total
of 3,000 takes by Level B harassment of harbor seals under this renewal
IHA. A detailed description of the methods and inputs used to estimate
take for the specified activity are found in the Federal Register
notices of the Proposed IHA (88 FR 41920, June 28, 2023) and Final IHA
(88 FR 51778, August 4, 2023) for the initial authorization.
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 the Federal Register notice of the Proposed IHA (88 FR
41920, June 28, 2023) remains accurate. The following mitigation
measures are proposed for this renewal:
<bullet> 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;
<bullet> Work must not take place outside of the containment system
on the bridge between Piers 52-57 from April 1 to July 31;
<bullet> A non-disturbance buffer will be established within 400
feet (121 meters) of Castro Rocks on the south side of bridge;
<bullet> Staging of barges will not be allowed in the project area;
<bullet> 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; and
<bullet> 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. The following monitoring and
reporting measures are proposed for this renewal:
<bullet> 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> 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; and
<bullet> The location of the PSOs will be at a monitoring platform
positioned on
[[Page 15552]]
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.
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:
<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.
Comments and Responses
As noted previously, NMFS published a notice of a proposed IHA (88
FR 41920, June 28, 2023) and solicited public comments on both our
proposal to issue the initial IHA for the installation and removal of
the debris containment system and on the potential for a renewal IHA,
should certain requirements be met. All public comments were addressed
in the notice announcing the issuance of the initial IHA (88 FR 51778,
August 4, 2023) and none of the comments specifically pertained to the
renewal of the 2023 IHA.
Preliminary Determinations
The activities conducted under this potential renewal would be a
subset of the activities authorized under the initial IHA.
Specifically, this renewal would authorize the removal of the debris
containment system. Removal of the debris containment system is
expected to take 10 days. This activity was originally authorized under
the initial IHA but Caltrans could not complete the removal of the
debris containment system before the initial IHA expired. In analyzing
the effects of the activities for the initial IHA, NMFS determined that
the Caltrans' activities would have a negligible impact on the affected
species or stocks and that the authorized take numbers of each species
or stock were small relative to the relevant stocks (e.g., less than
one-third of the abundance of all stocks). There is no new information
that affects NMFS' determinations supporting issuance initial IHA or
this renewal. 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) Caltrans' activities will not have an unmitigable
adverse impact on taking for subsistence purposes as no relevant
subsistence uses of marine mammals are implicated by this action; and
(5) appropriate monitoring and reporting requirements are included.
Endangered Species Act
No incidental take of Endangered Species Act (ESA)-listed species
is authorized or expected to result from this activity. Therefore, NMFS
has determined that formal consultation under section 7 of the ESA is
not required for this action.
Proposed Renewal IHA and Request for Public Comment
As a result of these preliminary determinations, NMFS proposes to
issue a renewal IHA to Caltrans for the removal of the debris
containment system for Phase II of the Richmond-San Rafael Bridge
Restoration Project in Richmond, California from the April 1, 2024,
through March 30, 2025, 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/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>. We request comment on
our analyses, the proposed renewal IHA, and any other aspect of this
notice. Please include with your comments any supporting data or
literature citations to help inform our final decision on the request
for MMPA authorization.
Dated: February 27, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-04400 Filed 3-1-24; 8:45 am]
BILLING CODE 3510-22-P
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