Notice2024-23681
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Sand Island Pile Dikes Repairs on the Columbia River
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
October 15, 2024
Effective
July 31, 2025
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 a modified incidental harassment authorization (IHA) to U.S. Army Corps of Engineers (USACE) to incidentally harass marine mammals during construction associated with Sand Island Pile Dikes Repairs on the Columbia River.
Full Text
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<title>Federal Register, Volume 89 Issue 199 (Tuesday, October 15, 2024)</title>
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[Federal Register Volume 89, Number 199 (Tuesday, October 15, 2024)]
[Notices]
[Pages 82986-82990]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23681]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XE353]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Sand Island Pile Dikes Repairs on
the Columbia River
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of a modified incidental harassment
authorization.
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[[Page 82987]]
SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued a modified incidental harassment authorization
(IHA) to U.S. Army Corps of Engineers (USACE) to incidentally harass
marine mammals during construction associated with Sand Island Pile
Dikes Repairs on the Columbia River.
DATES: This modified IHA is effective through July 31, 2025.
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-army-corps-engineers-sand-island-pile-dikes-repairs-columbia">https://www.fisheries.noaa.gov/action/incidental-take-authorization-army-corps-engineers-sand-island-pile-dikes-repairs-columbia</a>. In case of problems accessing these documents,
please call the contact listed below.
FOR FURTHER INFORMATION CONTACT: Robert Pauline, 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 issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be 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 such 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 such takings are set forth.
History of Request
On March 4, 2022, NMFS received a request from the USACE for two
consecutive IHAs to take marine mammals incidental to the Sand Island
Pile Dikes Repairs Project on the Columbia River over the course of 2
years. The USACE's request was for take of seven species of marine
mammals by Level B harassment and, for a subset of these species
(harbor seal (Phoca vitulina) and harbor porpoise (Phocoena phocoena)),
Level A harassment. On August 22, 2023, NMFS published a Federal
Register notice (87 FR 51346) announcing the issuance of the IHAs,
which were valid for year 1 from August 1, 2023 through July 31, 2024
and for year 2 from August 1, 2024 through July 31, 2025.
On August 19, 2024, NMFS received a request from the USACE to
modify the year 2 IHA. Following receipt of additional information,
NMFS accepted the request on September 11, 2024. The original year 2
IHA authorized, by Level B harassment only, six takes of humpback whale
(from the California/Oregon/Washington stock designated at the time;
Megaptera novaeangliae) and two takes from the West Coast Transient
stock of killer whale (Orcinus orca).
Sightings of humpback whales have increased in the work area from
previous years. Humpback whale feeding groups have begun utilizing the
mouth of the Columbia River as foraging ground. The USACE had recorded
four potential takes of humpback whale by Level B harassment as of
September 11, 2024 after 24 days of in-water pile driving work, with 80
in-water days remaining. In addition, there have been several recent
sightings of transient killer whales in the area. These sightings
represent a change to occurrence data considered by NMFS and which
informed the original take estimates. Therefore, the USACE is
requesting a modification to the year 2 authorization to increase the
authorized take of humpback whale and killer whale, by Level B
harassment only.
Description of the Activity and Anticipated Impacts
There are no changes to the specified activity or to the
mitigation, monitoring, and reporting requirements as described for the
original year 2 IHA (87 FR 39481, July 1, 2022). Please see the
additional relevant documents related to the issuance of the initial
IHA, including the USACE's application and the notice of issuance of
the IHA (87 FR 51346, August 22, 2022) (available at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-army-corps-engineers-sand-island-pile-dikes-repairs-columbia">https://www.fisheries.noaa.gov/action/incidental-take-authorization-army-corps-engineers-sand-island-pile-dikes-repairs-columbia</a>) for more detailed
descriptions.
Detailed Description of the Action
A detailed description of the construction activities can be found
in the aforementioned documents associated with the issuance of the
initial year 2 IHA. The location and general nature of the activities
are identical to those described in the previous documents. As of
September 11, 2024, 24 days in-water work had been completed out of a
projected total of 104 days.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
can be found in these previous documents, which remains applicable to
this modified IHA as well. In addition, NMFS has reviewed the draft
2023 Stock Assessment Reports (SARs; Young et al., 2023; available at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>), information on relevant
Unusual Mortality Events, and recent scientific literature, and
incorporated that into table 1 below.
Table 1 lists all species or stocks for which take is expected and
authorized to be 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. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
[[Page 82988]]
NMFS' Alaska Marine Mammal SARs. All values presented in table 1 are
the most recent available at the time of publication (including from
the draft 2023 SARs) 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>. Note that the stock abundances of humpback whale,
harbor porpoise, and Steller sea lion have updated since the Federal
Register notice of issuance was published (87 FR 51346, August 22,
2022). The updates figures are reflected in table 1.
Table 1--Species Likely Impacted by the Specified Activities
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Stock abundance
ESA/MMPA (CV, Nmin, most
Common name Scientific name Stock status; recent PBR Annual M/
strategic abundance SI \3\
(Y/N) \1\ survey) \2\
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Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
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Family Balaenopteridae
(rorquals):
Humpback whale........... Megaptera Central America/ E, D, Y 1,494 (0.171, 3.5 14.9
novaeangliae. Southern 1,284, 2021).
Mexico--Califo
rnia/Oregon/
Washington.
Mainland T, D, Y 3,477 (0.101, 43 22
Mexico--CA/OR/ 3,185, 2018).
WA.
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Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
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Family Delphinidae:
Killer Whale............. Orcinus orca... West Coast -, -, N 349 \4\ (N/A, 3.5 0.4
Transient. 349, 2018).
Family Phocoenidae
(porpoises):
Harbor Porpoise.......... Phocoena Northern Oregon/ -, -, N 22,074 (0.391, 161 3.2
phocoena. Washington 16,068, 2024).
Coast.
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Order Carnivora--Superfamily Pinnipedia
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Family Otariidae (eared seals
and sea lions):
California Sea Lion...... Zalophus U.S............ -, -, N 257,606 (N/A, 14,011 >321
californianus. 233,515, 2014).
Steller Sea Lion......... Eumetopias Eastern........ -, -, N 36,308 (N/A, 2,592 112
jubatus. 36,308, 2022)
\5\.
Family Phocidae (earless
seals):
Harbor Seal.............. Phoca vitulina. Oregon/ -, -, N 24,732 \6\ UND 10.6
Washington (UNK, UNK,
Coast. 1999).
Northern Elephant Seal... Mirounga California -, -, N 187,386 (N/A, 5,122 13.7
angustirostris. Breeding. 85,369, 2013).
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\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species
is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one
for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and
likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>-region. CV is coefficient of variation; Nmin is the minimum
estimate of stock abundance.
\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 mortality/serious injury (M/SI)
often cannot be determined precisely and is in some cases presented as a minimum value or range.
\4\ Based on counts of individual animals identified from photo-identification catalogues. Surveys for abundance
estimates of these stocks are conducted infrequently.
\5\ Nest is best estimate of counts, which have not been corrected for animals at sea during abundance surveys.
Estimates provided are for the U.S. only.
\6\ The abundance estimate for this stock is greater than 8 years old and is therefore not considered current.
PBR is considered undetermined for this stock, as there is no current minimum abundance estimate for use in
calculation. We nevertheless present the most recent abundance estimates, as these represent the best
available information for use in this document.
Humpback Whales
On September 8, 2016, NMFS divided the once single species into 14
distinct population segments (DPS) under the ESA, removed the species-
level listing as endangered, and, in its place, listed four DPSs as
endangered and one DPS as threatened (81 FR 62259, September 8, 2016).
The remaining nine DPSs were not listed. There are four DPSs in the
North Pacific, including Western North Pacific and Central America,
which are listed as endangered, Mexico, which is listed as threatened,
and Hawaii, which is not listed.
The 2022 Pacific SARs described a revised stock structure for
humpback whales which modifies the previous stocks designated under the
MMPA to align more closely with the ESA-designated DPSs (Caretta et
al., 2023; Young et al., 2023). Specifically, the three previous North
Pacific humpback whale stocks (Central and Western North Pacific stocks
and a CA/OR/WA stock; take of humpback whales authorized through the
original Year 2 IHA was from the latter stock) were replaced by five
stocks, largely corresponding with the ESA-designated DPSs. These
include Western North Pacific and Hawaii stocks and a Central America/
Southern Mexico-CA/OR/WA stock (which corresponds with the Central
America DPS). The remaining two stocks, corresponding with the Mexico
DPS, are the Mainland Mexico-CA/OR/WA and Mexico-North Pacific stocks
(Caretta et al., 2023; Young et al., 2023). The former stock is
expected to occur along the west coast from California to southern
British Columbia, while the latter stock may occur across the Pacific,
from northern British Columbia through the Gulf of Alaska and Aleutian
Islands/Bering Sea region to Russia. Only the Mainland Mexico-CA/OR/WA
and Mexico-North Pacific stocks are expected to be affected by the
specified activity, and take previously authorized for the CA/OR/WA
stock is here reallocated to these two newly designated stocks, as
discussed below.
We have determined that no new information affects our original
analysis of potential impacts under the initial Year 2 IHA.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat may be found in the documents
supporting the issuance of the original year 2 IHA, which remains
applicable to the modification of the IHA. NMFS is not
[[Page 82989]]
aware of new information regarding potential effects.
Estimated Take
A detailed description of the methods and inputs used to estimate
authorized take for the specified activities are found in the Federal
Register notice of proposed IHAs (87 FR 3948, July 1, 2022). The types
and sizes of piles, ensonified areas and source levels, and methods of
pile driving remain unchanged from the IHA.
The modification addresses USACE's concerns that the ongoing
construction activities could result in exceeding levels of authorized
take of humpback whale and killer whale. Sightings of humpback whales
have increased in the project area from previous years. Humpback whale
feeding groups have begun utilizing the mouth of the Columbia River as
foraging ground, arriving in the lower Columbia estuary as early as
mid-June, and have been observed as late as mid-November with whale
peak abundance coinciding with the peak abundance of forage fish in
mid-summer. Humpback whales were observed in the immediate vicinity of
West and East Sand Islands in late summer and fall of 2015 and 2016.
They were also observed in the area in 2017 and 2019, but their
presence was not documented in 2018. Under the 2023 year 1 IHA, no
humpback whales were detected in 34 days of pile driving.
According to Wade et al. (2021), the probabilities that humpback
whales encountered in Oregon and California (i.e., south of the
Columbia River) belong to various DPSs are as follows: Mexico DPS, 58
percent; and Central America DPS, 42 percent. The probabilities that
humpback whales found in Washington and Southern British Columbia
waters (i.e., north of the Columbia River) belong to various DPSs are
as follows: Hawai'i DPS, 69 percent; Mexico DPS, 25 percent; and
Central America DPS, 6 percent (Wade et al., 2021). In this area, these
DPSs correspond with the newly designated Mainland Mexico-CA/OR/WA,
Central America/Southern Mexico-CA/OR/WA, and Hawaii stocks,
respectively. Since the Columbia River is considered the dividing line
between these two areas, the correct proportion of humpback whales
likely to be encountered is unclear, i.e., whether the probabilities
are closer to those assumed for the regions north or south of the
Columbia River. NMFS conservatively assumes here that take of humpback
whale would be the same as at a location south of the Columbia River,
with 58 percent likely from the Mexico stock and 42 percent from the
Central America stock.
The USACE has recorded four takes of humpback whale by Level B
harassment as of September 11, 2024 after 24 days of in-water pile
driving work which equates to a daily take rate of 0.17 animals/day.
NMFS had originally authorized six takes by Level B harassment. With 80
days in-water work remaining, the projected take at the rate described
above would result in 14 takes in addition to the 4 takes already
recorded. NMFS is further authorizing an additional 10 takes by Level B
harassment to ensure adequate consideration of likely take in light of
the present increased occurrence of humpback whales. Therefore, NMFS
has authorized a total of 28 humpback whale takes by Level B
harassment.
The USACE also requested an increase in authorized take by Level B
harassment of killer whales. NMFS had authorized two takes by Level B
harassment under the original year 2 IHA. Under the 2023 year 1 IHA, no
killer whales were detected in 34 days of pile driving according to the
monitoring report submitted by the USACE. Based on recent anecdotal
sightings, the USACE was concerned about potentially exceeding
authorized take. The USACE felt that killer whales are more likely to
enter into the project than previously considered. NMFS agreed with
this assessment and modified the original IHA accordingly. The modal
group sizes for transient killer whales ranges from three to four
(Shields et al. 2018). NMFS assumed take of 2 groups of 4 in addition
to the 2 already authorized in the year 2 IHA for a total of 10 takes
by Level B harassment.
Table 2 shows the authorized take of all marine mammals by Level A
and Level B harassment including revisions to authorized take of
humpback whale and killer whale.
Table 2--Authorized Take of Marine Mammals by Level A and Level B Harassment by Year, by Species and Stock and Percent of Take by Stock
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Authorized Authorized
Species take by Level take by Level Total proposed Stock Stock Percent of
A harassment B harassment take abundance stock
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Year 2:
Humpback whale \1\.................... 0 12 12 Central America/Southern 1,494 <0.01
Mexico--California/Oregon/
Washington.
0 16 16 Mainland Mexico--CA/OR/WA... 3,477 0.46
Killer whale.......................... 0 10 10 West Coast Transient........ 349 0.28
Harbor porpoise....................... 27 163 190 Northern Oregon/Washington 22,074 0.86
Coast.
California sea lion................... 0 23,421 23,421 U.S......................... 257,606 9.09
Steller sea lion...................... 0 29,502 29,502 Eastern..................... 36,308 81.25
Harbor seal........................... 54 5,361 5,415 Oregon/Washington Coast..... 24,732 21.89
Northern elephant seal................ 0 6 6 California Breeding......... 187,363 <0.01
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\1\Humpback whales from the Central America/Southern Mexico-CA/OR/WA stock and the Mainland Mexico-CA/OR/WA stock are likely to occur in the project
area in the respective percentages of 42 and 58 percent (Wade et al. 2021).
Description of Mitigation, Monitoring and Reporting Measures
The mitigation, monitoring and reporting measures are identical to
those included in the initial year 2 IHA and remain relevant for this
modified IHA. These can be found in the documents supporting the
issuance of the two consecutive final IHAs.
Determinations
With the exception of the revised take numbers for humpback whale
and killer whale, by Level B harassment only, the USACE's in-water
construction activities as well as mitigation and reporting
requirements are unchanged from those in the year 2 IHA. The effects of
the activity on the affected species and stocks remain unchanged.
The additional takes by Level B harassment would be due to
potential behavioral disturbance and potential temporary threshold
shift (TTS). No serious injury or mortality is anticipated given the
nature of the activity and measures designed to minimize the
possibility of injury to marine mammals. The potential for harassment
is minimized through the construction
[[Page 82990]]
method and the implementation of the planned mitigation measures (see
Description of Mitigation, Monitoring and Reporting Measures section).
The USACE's pile driving project precludes the likelihood of
serious injury or mortality. For all species and stocks, take would
occur within a limited, confined area of the stock's range. Level A and
Level B harassment would be reduced to the level of least practicable
adverse impact through use of mitigation measures described herein.
The additional authorized takes of humpback whale and killer whale
represent a minor increase in the percent of stock taken that was
authorized in the initial year 2 IHA, and the anticipated impacts are
identical to those described in the Federal Register notice of issuance
of final IHA (87 FR 51346, August 22, 2022). The increases in
authorized takes by Level B harassment for humpback and killer whale
are extremely small when compared to stock abundance. The increase in
authorized take of humpback and killer whale by Level B harassment is
less than 0.01 percent for the Central America/Southern Mexico DPS and
no greater than 0.46 percent for the Mainland Mexico DPS. Therefore,
this activity will not cause effects on annual rates of recruitment or
survival. We have determined that the impacts resulting from this
activity are not expected to adversely affect annual rates of
recruitment or survival for humpback whale, killer whale or any other
species where NMFS has authorized take.
Based on the information 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) the USACE'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 (16 U.S.C.
1531 et seq.) requires that each Federal agency insure that any action
it authorizes, funds, or carries out is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of designated critical
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS
consults internally whenever we propose to authorize take for
endangered or threatened species, in this case with the West Coast
Regional Office.
As part of the original IHA, NMFS authorized incidental take of
humpback whales from the California/Oregon/Washington stock that was
designated at the time, and which included whales from the ESA-listed
Mexico and Central America DPSs. The effects of this Federal action
were adequately analyzed in the NMFS West Coast Region's Biological
Opinion and Magnuson-Stevens Fishery Conservation and Management Act
Essential Fish Habitat Response for the Sand Island Pile Dike Repair
Project, dated June 14, 2022, which concluded that the action is not
likely to adversely affect humpback whales from the Mexico and Central
America DPSs or their designated critical habitat. This modification of
the IHA does not change the existing analysis and, therefore, the prior
determination remains unchanged.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has determined
that the issuance of the modification of the IHA continues to qualify
to be categorically excluded from further NEPA review.
Authorization
NMFS has issued a modified IHA to the USACE for conducting
construction activities associated Sand Island Dikes Repair Project on
the Columbia River that includes the previously explained mitigation,
monitoring, and reporting requirements.
Dated: October 8, 2024.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2024-23681 Filed 10-11-24; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on October 15, 2024.
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