Notice2024-07678
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Chevron Long Wharf Maintenance and Efficiency Project in San Francisco Bay, California
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 11, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS received a request from Chevron Products Company (Chevron) for the renewal of their currently active incidental harassment authorization (IHA) to take marine mammals incidental to the Long Wharf Maintenance and Efficiency Project (LWMEP) in San Francisco Bay, California. Chevron's 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 71 (Thursday, April 11, 2024)</title>
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[Federal Register Volume 89, Number 71 (Thursday, April 11, 2024)]
[Notices]
[Pages 25573-25577]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07678]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD816]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to the Chevron Long Wharf Maintenance
and Efficiency Project in San Francisco Bay, 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 Chevron Products Company
(Chevron) for the renewal of their currently active incidental
harassment authorization (IHA) to take marine mammals incidental to the
Long Wharf Maintenance and Efficiency Project (LWMEP) in San Francisco
Bay, California. Chevron's 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 April
26, 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#4d04191d632e21283b28233e392423280d23222c2c632a223b"><span class="__cf_email__" data-cfemail="e4adb0b4ca87888192818a97908d8a81a48a8b8585ca838b92">[email protected]</span></a>. 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.
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.
FOR FURTHER INFORMATION CONTACT: Alyssa Clevenstine, 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 promulgated or, if the taking is limited
[[Page 25574]]
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''). 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; 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 (88 FR 19247, March 31, 2023), 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="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 May 12, 2023, NMFS issued an IHA to Chevron to take marine
mammals incidental to the LWMEP in San Francisco Bay, California (88 FR
31703, May 18, 2023), effective from June 1, 2023, through May 31,
2024. On February 23, 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. That report and other supporting materials can be
found on the project website: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-chevron-products-company-long-wharf-maintenance-and-efficiency">https://www.fisheries.noaa.gov/action/incidental-take-authorization-chevron-products-company-long-wharf-maintenance-and-efficiency</a>.
Description of the Specified Activities and Anticipated Impacts
The Chevron LWMEP consists of construction activities to upgrade
Berth 1 of the Refinery Long Wharf in San Francisco Bay, California, in
order to meet current safety and efficiency standards. Chevron's
planned construction at Berth 1 included: vibratory extraction of two
18-inch concrete piles associated with an existing gangway and catwalk;
impact installation of 42 24-inch square concrete piles to construct a
mooring dolphin and hook, breasting dolphin and breasting points with
standoff fenders, and to replace the catwalk in a different location;
vibratory installation of a temporary construction template composed of
up to 12 36-inch steel piles; and vibratory extraction of the same
temporary steel piles when in-
[[Page 25575]]
water construction activities were complete. All in-water work was
expected to be completed in a seasonal work window from June 1 through
November 30, 2023.
Due to unexpected difficulty with pile installation, Chevron was
only able to complete vibratory extraction and impact installation of
concrete piles, and vibratory installation of temporary steel piles.
The applicant initially determined 12 36-inch steel piles would be
needed to support the template; however, only 10 steel piles were
needed and installed via vibratory hammer. Chevron plans to complete
the remaining construction activities, which includes vibratory
extraction of the 10 steel piles, in up to 8 non-consecutive days
during 1 month during June 1 through November 30, 2024. This renewal
request is to cover the subset of activities in the initial IHA that
will not be completed during the effective IHA period.
The initial IHA was intended to cover 1 year of a larger project
for which Chevron obtained prior IHAs and intends to request take
authorization for subsequent facets of the project. The larger 5-year
project involves upgrading Long Wharf to satisfy current Marine Oil
Terminal Engineering and Maintenance Standards. The Long Wharf has 6
berths for receiving raw materials and shipping products. The project
area encompasses the entirety of Berth 1, an area of approximately 470
square meters (m\2\).
Chevron's proposed activity includes vibratory pile removal, which
may result in the incidental take of marine mammals, by harassment
only. Due to mitigation measures, no Level A harassment is anticipated
to occur, and none is proposed for authorization. The likely or
possible impacts of the Chevron's proposed activity on marine mammals
could involve both non-acoustic and acoustic stressors and is unchanged
from the impacts described in Federal Register notices for the initial
IHA (88 FR 19247, March 31, 2023; 88 FR 31703, May 18, 2023). Potential
non-acoustic stressors could result from the physical presence of the
equipment, vessels, and personnel; however, any impacts to marine
mammals are expected to primarily be acoustic in nature. Sounds
resulting from pile extraction may result in the incidental take of
marine mammals, by Level B harassment only, in the form of behavioral
harassment.
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 (88 FR 19247, March 31, 2023;
88 FR 31703, May 18, 2023). As previously mentioned, this request is
for a subset of the activities considered for the initial 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. The proposed renewal IHA would be effective from June
1, 2024, through March 31, 2025.
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 (88 FR 19247,
March 31, 2023). NMFS has reviewed the monitoring data from the initial
IHA, recent draft Stock Assessment Reports (SARs), information on
relevant Unusual Mortality Events (UMEs), 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 (88 FR 31703, May 18, 2023).
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 an
authorization of incidental take is proposed here may be found in the
notice of the proposed IHA for the initial authorization (88 FR 19247,
March 31, 2023). NMFS has reviewed the monitoring data from the initial
IHA, recent draft SARs, information on relevant UMEs, 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
A detailed description of the methods and inputs used to estimate
take for the specified activity are found in the notices of the
proposed and final IHAs for the initial authorization (88 FR 19247,
March 31, 2023; 88 FR 31703, May 18, 2023). Specifically, the 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, methods of take, daily take estimates and
types of take remain unchanged from the initial IHA, with the exception
of California sea lion and gray whale. The number of takes proposed for
authorization in this renewal are a subset of the initial authorized
takes that better represent the amount of activity left to complete.
These takes, which reflect the lower number of remaining days of work,
are indicated below in table 1. Takes are calculated using the same
methodology as the initial IHA, and are just a proportion of the
initial takes based on up to 8 days of work remaining.
For California sea lions, a maximum of four individuals have been
seen in a single day based on previous monitoring reports. To account
for this possibility, Chevron estimated 2 days of four individuals
entering the project area and one individual for the remaining 6 days
of work. Therefore, Chevron requested, and NMFS proposes to authorize,
14 takes of California sea lions by Level B harassment.
The initial IHA authorized 2 takes by Level B harassment of gray
whale. No gray whale takes have occurred, and given the already very
low number of takes previously authorized (2 animals), NMFS proposes to
authorize 2 takes of gray whale in this renewal IHA, rather than a
proportion of the initial takes.
Based upon prior occurrences in the Bay, Chevron conservatively
estimated, and NMFS concurred, that a maximum of 10 northern fur seals
could occur in the project area during the 30 day in-water construction
activity period for the initial IHA. Since only 8 days of in-water work
are proposed for this renewal IHA, NMFS proposes to authorize 3 takes
of northern fur seals by Level B harassment.
[[Page 25576]]
Table 1--Estimated Take by Level B Harassment Proposed for Authorization and Estimated Take as a Percentage of
the Population
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Estimated take
Total as a
Species Expected occurrence estimated take percentage of
population
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Harbor seal................................... 237 seals per day............... 1,896 <7
California sea lion *......................... 14 over project duration........ 14 <1
Harbor porpoise............................... 1 porpoise per day.............. 8 <1
Bottlenose dolphin............................ Up to 8 dolphins once per month. 8 <2
Gray whale **................................. 2 whales over project duration.. 2 <1
Northern elephant seal........................ 1 seal every 3 days............. 3 <1
Northern fur seal ***......................... 3 seals over project duration... 3 <1
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* Takes of California sea lion are calculated to account for up to 2 days with a maximum of four individuals per
day, based on previous observations, and 6 days of one individual per day.
** The initial IHA authorized 2 takes by Level B harassment of gray whale. No gray whale takes have occurred,
and given the already very low number of takes previously authorized (2 animals), NMFS proposes to authorize 2
takes of gray whale in this renewal IHA, rather than a proportion of the initial takes.
*** Takes of northern fur seal are calculated using the same proportions as the initial IHA, which is based on a
maximum of 10 individuals per 30 days.
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 (88 FR 31703, May 18, 2023), and the discussion of the
least practicable adverse impact included in that document remains
accurate. Only vibratory pile extraction is proposed for the renewal
IHA, so only a subset of mitigation requirements are included as
several others (e.g., soft-start procedures, bubble curtain) are
specific to impact pile installation and, therefore, unnecessary for
the specified activities proposed here.
The following mitigation, monitoring, and reporting measures are
proposed for this renewal, Chevron will:
<bullet> Employ at least two protected species observers (PSOs) to
monitor the full shutdown zones, the Level B harassment zones to the
extent practicable, and implement pre- and post-clearance monitoring;
<bullet> Implement a minimum shutdown zone of 10 meters for in-
water construction activities;
<bullet> Shut down if marine mammals come within the designated
hearing group-specific shutdown zones;
<bullet> Shut down if any species for which take has not been
authorized enters the Level B harassment zone;
<bullet> Submit a draft monitoring report to NMFS within 90 days of
completion of marine mammal monitoring or 60 days prior to issuance of
any subsequent IHA for this project, whichever comes first;
<bullet> Prepare and submit a final report within thirty days
following resolution of comments on the draft report from NMFS;
<bullet> Submit all PSO datasheets and/or raw sighting data (in a
separate file from the Final Report referenced immediately above); and
<bullet> Report injured or dead marine mammals.
Comments and Responses
As noted previously, NMFS published a notice of a proposed IHA (88
FR 19247, March 31, 2023) and solicited public comments on both our
proposal to issue the initial IHA for construction activities
associated with LWMEP 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 Chevron'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 preliminarily
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) Chevron'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 Chevron for conducting pile extraction
activities in San Francisco Bay from June 1, 2024, through May 31,
2025, provided the
[[Page 25577]]
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 help inform our final
decision on the request for MMPA authorization.
Dated: April 8, 2024.
Catherine G. Marzin,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2024-07678 Filed 4-10-24; 8:45 am]
BILLING CODE 3510-22-P
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