Notice2026-05987
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Mal Coombs Stairway Replacement Project in Shelter Cove, 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
March 27, 2026
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS has received a request from the Bureau of Land Management (BLM) for authorization to take marine mammals incidental to the Mal Coombs Stairway Replacement Project in Shelter Cove, California. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-time, 1-year renewal that could be issued under certain circumstances and if all requirements are met, as described in Request for Public Comments at the end of this notice. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision.
Full Text
<html>
<head>
<title>Federal Register, Volume 91 Issue 59 (Friday, March 27, 2026)</title>
</head>
<body><pre>
[Federal Register Volume 91, Number 59 (Friday, March 27, 2026)]
[Notices]
[Pages 14816-14827]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-05987]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XF520]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Mal Coombs Stairway Replacement
Project in Shelter Cove, California
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; proposed incidental harassment authorization; request
for comments on proposed authorization and possible renewal.
-----------------------------------------------------------------------
SUMMARY: NMFS has received a request from the Bureau of Land Management
(BLM) for authorization to take marine mammals incidental to the Mal
Coombs Stairway Replacement Project in Shelter Cove, California.
Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting
comments on its proposal to issue an incidental harassment
authorization (IHA) to incidentally take marine mammals during the
specified activities. NMFS is also requesting comments on a possible
one-time, 1-year renewal that could be issued under certain
circumstances and if all requirements are met, as described in Request
for Public Comments at the end of this notice. NMFS will consider
public comments prior to making any final decision on the issuance of
the requested MMPA authorization and agency responses will be
summarized in the final notice of our decision.
DATES: Comments and information must be received no later than April
27, 2026.
ADDRESSES: Comments should be addressed to 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#dc95888cf29ab0b9b1b5b2bb9cb2b3bdbdf2bbb3aa"><span class="__cf_email__" data-cfemail="155c41453b537970787c7b72557b7a74743b727a63">[email protected]</span></a>.
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/national/marine-mammal-protection/incidental-take-authorizations-construction-activities">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-activities</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-
[[Page 14817]]
megabyte file size. 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: Kate Fleming, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et
seq.) directs 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; 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 as ``mitigation'');
and requirements pertaining to the monitoring and reporting of the
takings. The definitions of all applicable MMPA statutory terms used
above are included in the relevant sections below (see also 16 U.S.C.
1362; 50 CFR 216.3, 216.103).
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 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 preliminarily determined
that the issuance of the proposed IHA qualifies to be categorically
excluded from further NEPA review.
Summary of Request
On January 15, 2026, NMFS received a request from BLM for an IHA to
take marine mammals incidental to Mal Coombs Stairway Replacement
Project in Shelter Cove, CA. Following NMFS' review of the application,
BLM submitted a revised version on January 28, 2026. The application
was deemed adequate and complete on February 23, 2026. BLM's initial
request was for authorization of take of California sea lion (Zalophus
californianus), Steller sea lion (Eumetopias jubatus), and harbor seal
(Phoca vitaluna). Following additional analysis, NMFS is proposing to
authorize take of these species and northern elephant seal (Mirounga
angustirostris), by Level B harassment only. Neither BLM nor NMFS
expect serious injury or mortality to result from this activity and,
therefore, an IHA is appropriate.
Description of Proposed Activity
Overview
BLM is proposing construction to replace a pre-existing wooden
stairway that was removed in 2022 with a prefabricated staircase at Mal
Coombs Park in Shelter Cove, California. The staircase provides
visitors with access to the beach and tidepools. The presence of
construction crews and noise from equipment may result in incidental
take via behavioral disturbance (take by Level B harassment) of
pinnipeds that haul out near the construction site.
Dates and Duration
The proposed IHA would be valid for the statutory maximum of 1 year
from the date of effectiveness. It will become effective upon written
notification from the applicant to NMFS, but not beginning later than 1
year from the date of issuance or extending beyond 2 years from the
date of issuance. Construction is anticipated to occur between August
1, 2026 and October 31, 2026. However, project delays may occur due to
a number of factors, including project funding, permitting
requirements, availability of equipment and/or materials, weather-
related delays, equipment maintenance and/or repair, and other
contingencies.
Construction is planned to take place for up to 4 days, for up to 8
daylight hours each day. Two construction segments consisting of two
days each will be separated by a 2-week curing period. However, to
account for unforeseen delays due to inclement weather, mechanical
failures, or slower production rates, NMFS and BLM estimate that the
project would be completed in up to 5 days.
Specific Geographic Region
Mal Coombs Park is one of four coastal locations and green spaces
that BLM manages within Shelter Cove, California. The BLM maintains a
large parking area, two restrooms, an information kiosk, interpretive
panels, trash cans, and a large picnic area with barbeque facilities at
Mal Coombs Park. The park receives approximately 95,000 visitors
annually. The project is planned along the Mal Coombs Stairway Trail,
which is a steep coastal access path that leads down to a small, rocky
beach and tide pools.
[[Page 14818]]
[GRAPHIC] [TIFF OMITTED] TN27MR26.015
Detailed Description of the Specified Activity
Stairway replacement on the Mal Coombs Stairway Trail would require
construction at three sites:
1. Upper landing: located at the top of the bluff, within a 10 by
10 foot (ft; 3 by 3 meter (m)) section that is south and east of the
Mal Coombs Stairway Trail trailhead. The Upper Landing is approximately
90 ft (27 m) from the nearest harbor seal haulout on the beach and
approximately 388 ft (118 m) from the sea lion haulout on the
intertidal rocks.
2. Middle landing: A 6 by 6 ft (1.8 by 1.8 m) area along the
stretch of the Mal Coombs Stairway Trail located halfway between the
Upper Landing and the Lower Landing. The Middle Landing is
approximately 62 ft (19 m) from the harbor seal haulout on the beach
and approximately 375 ft (114 m) from the sea lion haulout on the
intertidal rocks.
3. Lower landing: Existing concrete pad at the top of the current
staircase. The Lower Landing is approximately 48 ft from the nearest
harbor seal haul-out and 348 ft from the sea lion haulout on the
intertidal rocks.
A landing would be installed at the Upper Landing site and Middle
Landing site (two landings total), as no current landing pad exists at
these locations. Concrete piers and steel posts would also be installed
at the Upper and Middle landings, in locations that have been
determined as not likely to contain cultural resources. Two sets of
stairs would be installed between the Upper and Middle landings and the
Middle and Lower landings so that they ``float'' above the existing
trail, limiting further erosion.
On the first day of construction, the Upper and Middle Landing
sites would be cleared of vegetation and leveled using hand tools, weed
eaters, and shovels.
On the second day of construction, a two-person crew would use an
auger to excavate eight 8-inch (in; 20 centimeter (cm)) diameter holes
at the Upper landing site and eight 8-inch (20 cm) diameter holes at
the Middle landing site to create space for the installation of 8-in by
4 ft (20 cm by 1.2 m) deep concrete piers. BLM estimates that the
drilling of each hole could take 30 minutes to 1 hour.
As the auger crew drills and moves to the next pier location,
another two- to four-person crew would insert a Sono tube form and pump
concrete from a concrete mixing truck located in the parking lot (280
ft (85 m) from the nearest harbor seal haulout), to construct concrete
piers. Posts would be set into the concrete piers.
The concrete piers would need a two-week curing period. During this
time, no construction activities would be planned at the project site.
After the curing period (approximately 18 days into the
construction project), construction would resume at the project site.
BLM estimates approximately 2 days of construction would be needed to
anchor a metal or Fiber Reinforced Polymer stair landing to the posts
and float above the ground and piers, using crews of two to four
people. All of these components would be installed manually with
standard power tools.
Proposed mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Proposed
Mitigation and Proposed Monitoring and Reporting).
Description of Marine Mammals in the Area of Specified Activities
The application summarizes 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,
instead of reprinting the information. Additional information regarding
population trends and threats may be found in NMFS' Stock Assessment
Reports (SARs; <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>) and more general
information about these species (e.g., physical and behavioral
descriptions)
[[Page 14819]]
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
proposed 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 proposed
to be authorized here, PBR and annual mortality and serious injury (M/
SI) 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
NMFS' U.S. Pacific and Alaska SARs. All values presented in table 1 are
the most recent available at the time of publication (including from
the draft 2024 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>.
Table 1--Species, Stocks, and the Status of Marine Mammals \1\ With Estimated Take From the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA
status; Stock abundance (CV, Nmin,
Common name Scientific name Stock Strategic (Y/ most recent abundance PBR Annual M/SI \4\
N) \2\ survey) \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
Family Otariidae (eared seals and sea lions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
California sea lion............. Zalophus U.S............... -, -, N 257,606 (N/A, 233,515, 2014) 14,011 >321
californianus.
Steller sea lion................ Eumetopias jubatus Eastern........... -, -, N 36,308 (N/A \5\, 36,308, 2,178 93.2
2022)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal..................... Phoca vitulina.... CA................ -, -, N 30,968 (N/A, 27,348, 2012) 1,641 43
Northern elephant seal.......... Mirounga CA Breeding....... -, -, N 187,386 (N/A, 85,369, 2013) 5,122 13.7
angustirostris.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Information on the classification of marine mammal species can be found on the web page for The Society for Marine Mammalogy's Committee on Taxonomy
(<a href="https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/">https://marinemammalscience.org/science-and-publications/list-marine-mammal-species-subspecies/</a>).
\2\ 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.
\3\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\4\ 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.
\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.
As indicated above, all four species (with four managed stocks) in
table 1 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur.
California Sea Lion
California Sea lions breed on the offshore islands of southern and
central California from May through July (Heath and Perrin, 2008).
During the non-breeding season, adult and subadult males and juveniles
migrate northward along the coast to central and northern California,
Oregon, Washington, and Vancouver Island (Jefferson, et al. 1993).
Females and some juveniles tend to remain closer to rookeries (Melin et
al., 2008). In warm water (El Ni[ntilde]o) years, some females are
found as far north as Washington and Oregon, presumably following prey.
In preparation for this project, BLM conducted pinniped census
surveys of the beach and intertidal rocks on 12 days between June 3 and
September 29, 2025. California sea lions were regular visitors, with
animals present on the intertidal rocks on 10 out of 12 survey days. An
average of 21 adult California sea lions were present each day (ranging
between 0 and 56 adults). A total of 3 California sea lion pups were
documented on a single day in late June.
Steller Sea Lion
Steller sea lions are most typically found in coastal waters on the
continental shelf, but they also occur and sometimes forage in much
deeper continental slopes and pelagic waters. Haulout and rookery sites
consist of beaches (gravel, rocky, or sand), ledges, and rocky reefs.
They usually return to their natal rookery sites to breed. The eastern
stock of Steller sea lions has historically bred on rookeries located
in Southeast Alaska, British Columbia, Oregon, and California. Within
the last several years a new rookery has become established on the
outer Washington coast (Muto et al., 2020).
During BLM's pinniped census surveys (described above), a total of
7 adult Steller sea lions were observed on the intertidal rocks on just
one survey day in mid-July.
Harbor Seal
Harbor seals tend to exhibit strong site fidelity within seasons
and across years, generally forage close to haulout sites, and
repeatedly visit specific foraging areas (Suryan and Harvey, 1998;
Thompson et al., 1998). Harbor seals tend to forage at night and return
to the haulout during the day with the highest proportion of seals
coming ashore
[[Page 14820]]
around low tide (Brown and Mate 1983, Schneider and Payne 1983).
During BLM's pinniped census surveys (described above), harbor
seals were found to be regular visitors, with animals hauled out on the
beach on 10 out of 12 survey days. An average of 32 adult harbor seals
were present each day (ranging between 0 and 104 adults). A total of
six harbor seal pups were documented across the first 2 survey days in
June.
Northern Elephant Seal
Northern elephant seals (Mirounga angustirostris) range widely
throughout the eastern Pacific for most of the year to forage. They
return to haulout locations along the west coast of the continental
United States including the Channel Islands, the central California
coast, and islands off Baja California, to breed and molt. Breeding
occurs from mid-December through the end of March, with males returning
to haulout locations earlier than females to establish dominance
hierarchies. Molting occurs from late April to August, with juveniles
and adult females returning to haulout locations earlier than adult
males.
During BLM's pinniped census surveys (described above), no northern
elephant seals were observed. However, single northern elephant seals
occasionally haul out on beaches to molt or rest, and there is a known
northern elephant seal colony just 35 km to the north of Mal Coombs
Park, on the beach below Punta Gorda Lighthouse. As such, it is
possible that northern elephant seals could occur in the project area
during the project period.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
This section provides a discussion of the ways in which components
of the specified activity may impact marine mammals and their habitat.
The Estimated Take of Marine Mammals section later in this document
includes a quantitative analysis of the number of individuals that are
expected to be taken by this activity. The Negligible Impact Analysis
and Determination section considers the content of this section, the
Estimated Take of Marine Mammals section, and the Proposed Mitigation
section, to draw conclusions regarding the likely impacts of these
activities on the reproductive success or survivorship of individuals
and whether those impacts are reasonably expected to, or reasonably
likely to, adversely affect the species or stock through effects on
annual rates of recruitment or survival.
Presence of Humans
Visual and acoustic stimuli generated by the appearance of
construction personnel and construction equipment may have the
potential to cause Level B harassment of pinnipeds hauled out on the
beach and intertidal rocks at Mal Coombs Park. This section includes a
summary and discussion of the ways that the types of stressors
associated with the specified activity (e.g., personnel presence and
noise from use of construction equipment) have been observed to impact
marine mammals. This discussion may also include reactions that we
consider to rise to the level of a take and those that we do not
consider to rise to the level of a take. This section provides
background information on potential effects of these activities. For a
discussion of the manner in which the mitigation measures will be
implemented, and how the mitigation measures will shape the anticipated
impacts from this specific activity, see the Proposed Mitigation
section below.
Reactions to human presence, if any, depend on species, state of
maturity, experience, current activity, reproductive state, time of
day, and many other factors (Richardson et al., 1995; Southall et al.,
2007; Weilgart 2007). These behavioral reactions from marine mammals
are often shown as: changing durations of surfacing and dives, number
of blows per surfacing, or moving direction and/or speed; reduced/
increased vocal activities; changing/cessation of certain behavioral
activities (such as socializing or feeding); visible startle responses
or aggressive behavior; avoidance of areas; and/or flight responses
(e.g., pinnipeds flushing into the water from haulouts or rookeries).
If a marine mammal does react briefly to human presence by changing its
behavior or moving a small distance, the impacts of the change are
unlikely to be significant to the individual, let alone the stock or
population. However, if visual stimuli from human presence displaces
marine mammals from an important feeding or breeding area for a
prolonged period, impacts on individuals and populations could be
significant (e.g., Lusseau and Bejder 2007; Weilgart, 2007). Numerous
studies have shown that human activity can flush harbor seals off
haulout sites (Allen et al., 1984; Suryan and Harvey, 1999; Ruiz-Mar et
al., 2022; Bankhead et al., 2023). The Hawaiian monk seal (Neomonachus
schauinslandi) has been shown to avoid beaches that have been disturbed
often by humans (Kenyon, 1972; Gerrodette and Gilmartin, 1990). In one
case, human disturbance appeared to cause Steller sea lions to desert a
breeding area at Northeast Point on St. Paul Island, Alaska (Kenyon,
1962), a behavior demonstrated at other locations as well (Kucey, 2005;
Chayahara et al., 2024).
The appearance of personnel may have the potential to cause Level B
harassment of any pinnipeds hauled out at research sites. Disturbance
may result in reactions ranging from an animal simply becoming alert to
the presence of field personnel (e.g., turning the head, assuming a
more upright posture) to flushing from the haulout site into the water.
NMFS does not consider the lesser reactions to constitute behavioral
harassment, or Level B harassment takes, but rather assumes that
pinnipeds that flee some distance or change the speed or direction of
their movement in response to the presence of field personnel are
behaviorally harassed, and thus subject to the taking by Level B
harassment. Animals that respond to the presence of field personnel by
becoming alert, but do not move or change the nature of locomotion as
described, are not considered to have been subject to behavioral
harassment.
Avoidance
Avoidance is the displacement of an individual from an area or
migration path as a result of the presence of a sound or other
stressors, and is one of the most obvious manifestations of disturbance
in marine mammals (Richardson et al., 1995). Avoidance is qualitatively
different from the flight response, but also differs in the magnitude
of the response (i.e., directed movement, rate of travel, etc.). Often
avoidance is temporary, and animals return to the area once the noise
has ceased. Acute avoidance responses have been observed in captive
porpoises and pinnipeds exposed to a number of different sound sources
(Kastelein et al., 2001; Finneran et al., 2003; Kastelein et al.,
2006a; Kastelein et al., 2006b; Kastelein et al., 2015a; Kastelein et
al., 2015b; Kastelein et al., 2018). Short-term avoidance of seismic
surveys, low frequency emissions, and acoustic deterrents have also
been noted in wild populations of odontocetes (Bowles et al., 1994;
Goold, 1996; Goold and Fish, 1998; Morton and Symonds, 2002; Hiley et
al., 2021) and to some extent in mysticetes (Malme et al., 1984;
McCauley et al., 2000; Gailey et al., 2007). Longer-term displacement
is possible, however, which may lead to changes in abundance or
distribution patterns of the affected species in the affected region if
habituation to the presence of the sound does not occur (e.g.,
Blackwell et al., 2004; Bejder et al.,
[[Page 14821]]
2006; Teilmann et al., 2006). While NMFS acknowledges that most
research and literature cited here is related to cetaceans, who are not
expected to be harassed or taken by BLM's specified activities, we
include these to provide context as pinnipeds behaviorally react in a
similar manner when expected to an external stimulus (e.g., human
presence, noise, etc.) when onshore or in the water.
While NMFS expects that hauled out pinnipeds may avoid the BLM
field personnel, we expect these effects would be temporary. Harbor
seals in particular have high site fidelity; any external stimuli would
be fleeting, and easily avoidable, meaning that the pinnipeds, if
performing avoidance behaviors during activities, would be able to
resume their original behaviors once the stimulus has ended.
Flight Response
A flight response is a dramatic change in normal movement to a
directed and rapid movement away from the perceived location of a sound
source. The flight response differs from other avoidance responses in
the intensity of the response (e.g., directed movement, rate of
travel). Relatively little information on flight responses of marine
mammals to anthropogenic signals exist, although observations of flight
responses to the presence of predators have occurred (Connor and
Heithaus, 1996). The result of a flight response could range from
brief, temporary exertion and displacement from the area where the
signal provokes flight to, in extreme cases, marine mammal strandings
(Evans and England, 2001). There are limited data on flight response
for marine mammals in water; however, there are examples of this
response in species on land. For instance, the probability of flight
responses in Dall's sheep (Ovis dalli dalli) (Frid, 2003), hauled out
ringed seals (Phoca hispida) (Born et al., 1999), Pacific brant (Branta
bernicla nigricans), and Canada geese (B. canadensis) increased as a
helicopter or fixed-wing aircraft more directly approached groups of
these animals (Ward et al., 1999). However, it should be noted that
response to a perceived predator does not necessarily invoke flight
(Ford and Reeves, 2008), and whether individuals are solitary or in
groups may influence the response.
Behavioral disturbance can also impact marine mammals in more
subtle ways. Increased vigilance may result in costs related to
diversion of focus and attention (i.e., when a response consists of
increased vigilance, it may come at the cost of decreased attention to
other critical behaviors such as foraging or resting). These effects
have generally not been observed in marine mammals, but studies
involving fish and terrestrial animals have shown that increased
vigilance may substantially reduce feeding rates and efficiency (e.g.,
Beauchamp and Livoreil, 1997; Fritz et al., 2002; Purser and Radford,
2011). In addition, chronic disturbance can cause population declines
through reduction of fitness (e.g., decline in body condition) and
subsequent reduction in reproductive success, survival, or both (e.g.,
Harrington and Veitch, 1992; Daan et al., 1996; Bradshaw et al., 1998).
Many animals perform vital functions, such as feeding, resting,
traveling, and socializing, on a diel cycle (24-hour cycle). Disruption
of such functions resulting from reactions to stressors such as sound
exposure are more likely to be significant if they last more than one
diel cycle or recur on subsequent days (Southall et al., 2007).
Consequently, a behavioral response lasting less than 1 day and not
recurring on subsequent days is not considered particularly severe
unless it could directly affect reproduction or survival (Southall et
al., 2007). Note that there is a difference between multi-day
substantive behavioral reactions and multi-day anthropogenic
activities. For example, just because an activity lasts for multiple
days does not necessarily mean that individual animals are either
exposed to activity-related stressors for multiple days or, further,
exposed in a manner resulting in sustained multi-day substantive
behavioral responses.
There are other ways in which disturbance, as described previously,
could result in more than Level B harassment of marine mammals. They
are most likely to be consequences of stampeding (which is typically a
response to startle and/or avoidance behaviors), a potentially
dangerous occurrence in which large numbers of animals succumb to mass
panic and rush away from a stimulus. These situations are: (1)
pinnipeds falling when entering the water at high-relief locations
(e.g., cliffs); (2) extended separation of mothers and pups; and (3)
crushing of pups by larger animals during a stampede. However, NMFS
does not expect any of these scenarios to occur at Mal Coombs Park. As
stated, there is the risk of injury if animals stampede towards
shorelines with precipitous relief; however, at Mal Coombs Park,
pinniped out sites are primarily offshore rocks that have little
relief, with the harbor seal sites becoming submerged at high tide.
While the sea lion haul outs are always exposed, they are not very
steep.
Habituation
Habituation can occur when an animal's response to a stimulus wanes
with repeated exposure, usually in the absence of unpleasant associated
events (Wartzok et al., 2003). Animals are most likely to habituate to
sounds that are predictable and unvarying. It is important to note that
habituation is appropriately considered as a ``progressive reduction in
response to stimuli that are perceived as neither aversive nor
beneficial,'' rather than as, more generally, moderation in response to
human disturbance (Bejder et al., 2009). The opposite process is
sensitization, when an unpleasant experience leads to subsequent
responses, often in the form of avoidance, at a lower level of
exposure. As noted, behavioral state may affect the type of response.
For example, animals that are resting may show greater behavioral
change in response to disturbing sound levels than animals that are
highly motivated to remain in an area for feeding (Richardson et al.,
1995; NRC, 2003; Wartzok et al., 2003). Controlled experiments with
captive marine mammals have shown pronounced behavioral reactions,
including avoidance of loud sound sources (Ridgway et al., 1997;
Finneran et al., 2003). Observed responses of wild marine mammals to
loud impulsive sound sources (typically seismic airguns or acoustic
harassment devices) have been varied but often consist of avoidance
behavior or other behavioral changes suggesting discomfort (Morton and
Symonds, 2002; see also Richardson et al., 1995; Nowacek et al., 2007).
Stress Response
An animal's perception of a threat may be sufficient to trigger
stress responses consisting of some combination of behavioral
responses, autonomic nervous system responses, neuroendocrine
responses, or immune responses (e.g., Seyle, 1950; Moberg, 2000). In
many cases, an animal's first and sometimes most economical (in terms
of energetic costs) response is behavioral avoidance of the potential
stressor. Autonomic nervous system responses to stress typically
involve changes in heart rate, blood pressure, and gastrointestinal
activity. These responses have a relatively short duration and may or
may not have a significant long-term effect on an animal's fitness.
Neuroendocrine stress responses often involve the hypothalamus-
pituitary-adrenal system. Virtually all neuroendocrine functions that
are affected by stress--including immune
[[Page 14822]]
competence, reproduction, metabolism, and behavior--are regulated by
pituitary hormones. Stress-induced changes in the secretion of
pituitary hormones have been implicated in failed reproduction, altered
metabolism, reduced immune competence, and behavioral disturbance
(e.g., Moberg, 1987; Blecha, 2000). Increases in the circulation of
glucocorticoids are also equated with stress (Romano et al., 2004).
The primary distinction between stress (which is adaptive and does
not normally place an animal at risk) and ``distress'' is the cost of
the response. During a stress response, an animal uses glycogen stores
that can be quickly replenished once the stress is alleviated. In such
circumstances, the cost of the stress response would not pose serious
fitness consequences. However, when an animal does not have sufficient
energy reserves to satisfy the energetic costs of a stress response,
energy resources must be diverted from other functions. This state of
distress will last until the animal replenishes its energetic reserves
sufficient to restore normal function.
Relationships between these physiological mechanisms, animal
behavior, and the costs of stress responses are well studied through
controlled experiments and for both laboratory and free-ranging animals
(e.g., Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003;
Krausman et al., 2004; Lankford et al., 2005). Stress responses due to
exposure to anthropogenic sounds or other stressors and their effects
on marine mammals have also been reviewed (Fair and Becker 2000; Romano
et al., 2002b) and, more rarely, studied in wild populations (e.g.,
Romano et al., 2002a). For example, Rolland et al. (2012) found that
noise reduction from reduced ship traffic in the Bay of Fundy was
associated with decreased stress in North Atlantic right whales. These
and other studies lead to a reasonable expectation that some marine
mammals will experience physiological stress responses upon exposure to
acoustic stressors and that it is possible that some of these would be
classified as ``distress.'' However, distress is an unlikely result of
these projects based on observations of marine mammals during previous,
similar research and monitoring projects.
Marine Mammal Habitat Effects
There are no habitat modifications associated with the proposed
activity other than the presence of project personnel to perform the
proposed activities and to monitor animals. No substantial construction
is anticipated to occur for this proposed project, only activities that
rise to the level of maintenance, removal, and installation, which are
all expected to occur within a small footprint when compared to the
entire size of the available habitat at Mal Coombs Park. Moreover,
construction is planned for just 4 days across a 3-week period. Thus,
NMFS does not expect that the proposed activity would have any effects
on marine mammal habitat and NMFS expects that there will be no long-
or short-term physical impacts to pinniped habitat at Mal Coombs Park.
Proposed Activities on Potential Foraging Habitat
Marine mammal prey (e.g., fish) varies by species, season, and
location. However, as all of the BLM's proposed activities are
occurring onshore and the prey species for pinnipeds are located in the
ocean, NMFS does not expect the proposed activities to affect the
habitat, availability, or presence of prey for pinnipeds.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
proposed for authorization through the IHA, which will inform NMFS'
consideration of ``small numbers,'' the negligible impact
determinations, and impacts on subsistence uses.
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 would be by Level B harassment only, in the form
of behavioral reactions for individual marine mammals resulting from
exposure to construction crew and noise associated with the operation
of their equipment. Based on the nature of the activity, Level A
harassment is neither anticipated nor proposed to be authorized.
As described previously, no serious injury or mortality is
anticipated or proposed to be authorized for this activity. Below, in
the Take Estimation section, we describe how the proposed take numbers
are estimated.
Marine Mammal Occurrence
In this section we provide information about the occurrence of
marine mammals, including density or other relevant information which
will inform the take calculations.
As described in the Description of Marine Mammals in the Area of
Specified Activities section, BLM conducted pinniped census surveys of
the beach and intertidal rocks at Mal Coombs Park on 12 days between
June 3 and September 29. Counts of California sea lions, Steller sea
lions, and harbor seals are presented below:
Table 2--Pinniped Census Counts at Mal Coombs Park
----------------------------------------------------------------------------------------------------------------
Number of Number of Number of
Survey date harbor seals california sea steller sea
(pups) lions (pups) lions
----------------------------------------------------------------------------------------------------------------
June 3, 2025.................................................... 80 (4) 6 0
June 20, 2025................................................... 85 (2) 10 0
June 25, 2025................................................... 12 56 (3) 0
July 9, 2025.................................................... 104 0 0
July 17, 2025................................................... 14 0 0
July 23, 2025................................................... 32 16 7
August 19, 2025................................................. 0 24 0
August 27, 2025................................................. 0 34 0
August 31, 2025................................................. 4 28 0
September 16, 2025.............................................. 11 35 0
September 23, 2025.............................................. 36 25 0
September 29, 2025.............................................. 6 15 0
[[Page 14823]]
Average daily count............................................. 33 21 1
Maximum daily count............................................. 104 56 7
----------------------------------------------------------------------------------------------------------------
Take Estimation
Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and proposed for authorization.
Generally, take estimates are the product of marine mammal
occurrence and the proposed number of days of construction.
Specifically, take estimates are calculated by multiplying the expected
daily occurrence of marine mammals in the activity area by the number
of construction days planned. A summary of the method is illustrated
with the following formula:
Estimated take = Marine mammal occurrence x # of construction days.
In its application, BLM bases marine mammal occurrence assumptions
on the daily average occurrence reported during BLM's 2025 census
surveys described above. However, since the duration of this project is
very short (just 5 construction days), NMFS bases marine mammal
occurrence assumptions on the maximum daily occurrence observed during
BLM's 2025 census surveys described above to account for the
possibility that larger numbers of pinnipeds could occur on site on the
few days when construction activities are implemented.
BLM estimates take by Level B harassment for each species according
to Level 2 and Level 3 of the Levels of Pinniped Behavioral Disturbance
Scale (see table 4). However, NMFS does not differentiate between these
levels when estimating take by Level B harassment. As such, NMFS and
BLM have agreed to revise estimated take by Level B harassment
according to the inputs displayed in table 3. Therefore, NMFS proposes
to authorize 280 takes by Level B harassment of California sea lions,
35 takes by Level B harassment of Steller sea lions, and 520 takes by
Level B harassment of harbor seals.
BLM has not documented northern elephant seals at the haul outs at
Mal Coombs Park and BLM and NMFS are not aware of reports of this
species occurring at the project site from other sources. However, NMFS
proposes to authorize a total of two takes by Level B harassment of
northern elephant seals to account for the potential that this species
occurs at the project site during the construction period.
Table 3--Take by Stock and as a Percentage of Stock Abundance
----------------------------------------------------------------------------------------------------------------
Total take
Construction Marine mammal estimated and
Species Stock days occurrence proposed for % Stock
\1\ authorization
----------------------------------------------------------------------------------------------------------------
California sea lion........... U.S............. 5 56 280 <1
Steller sea lion.............. Eastern......... 5 7 35 <1
Harbor seal................... California...... 5 104 520 <1
Northern elephant seal........ California N/A N/A 2 <1
breeding.
----------------------------------------------------------------------------------------------------------------
\1\ Occurrence of California sea lions, Steller sea lions, and harbor seals is based on the maximum daily
occurrence reported from BLM's 2025 pinniped census data.
Proposed 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.
The mitigation requirements described in the following were
proposed by BLM in its adequate and complete application or are the
result of subsequent coordination between NMFS and BLM. BLM has agreed
that all of the mitigation measures are practicable. NMFS has fully
reviewed the specified activities and the mitigation measures to
determine if the mitigation measures would result in the least
practicable adverse impact on marine mammals and their habitat, as
required by the MMPA, and has determined the proposed measures are
appropriate. NMFS describes these below as proposed mitigation
requirements and has included them in the proposed IHA:
[[Page 14824]]
<bullet> BLM intends to implement the project outside of the harbor
seal pupping season, in the late summer, to ensure that any hauled-out
harbor seal pups would be old enough to be self sufficient if the
colony temporarily flushes into the water. This is described here due
to the beneficial effects of project timing, but is considered part of
BLM's described specified activity rather than a mitigation measure.
<bullet> At least one professional wildlife biologist employed by
BLM would serve as a Protected Species Observer (PSO) to monitor for
marine mammals.
<bullet> The PSO must observe the site from a distance to detect
any marine mammals prior to approach to determine if mitigation is
required.
<bullet> BLM would delay visits to the project site if offshore
pinniped predators are observed in the area prior to commencing work.
<bullet> BLM would cease or delay visits to the project site if a
species for which the number of takes that have been authorized for a
species are met, or if a species for which takes were not authorized,
is observed.
<bullet> Training would be required to ensure that construction
supervisors and crews, monitors, and relevant BLM staff are trained
prior to the start of activities subject to this IHA, so that
responsibilities, communication procedures, monitoring protocols, and
operational procedures are clearly understood, and
<bullet> Operations would be suspended if a dead or injured marine
mammal is found near the project area and the death or injury of the
animal could be attributable to BLM activities. Any such takes will
immediately be reported to the Office of Protected Resources
(<a href="/cdn-cgi/l/email-protection#3a6a6814736e6a14775554534e554853545d685f4a55484e497a54555b5b145d554c"><span class="__cf_email__" data-cfemail="174745395e4347395a78797e6378657e797045726778656364577978767639707861">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="1c55484c327a70797175727b5c72737d7d327b736a">[email protected]</a>) and the
West Coast Regional Stranding Coordinator (562-980-3264).
NMFS conducted an independent evaluation of the proposed measures,
and has preliminarily determined that the proposed 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.
Proposed 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 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.
The monitoring and reporting requirements described in the
following were proposed by BLM in its adequate and complete application
and/or are the result of subsequent coordination between NMFS and BLM.
BLM has agreed to the requirements. NMFS describes these below as
requirements and has included them in the proposed IHA.
Monitoring would be conducted by at least one trained wildlife
biologist employed by BLM. Prior to the work crew arriving on site to
commence work each day, the PSO would conduct counts of hauled out
pinnipeds for at least 10 minutes. The PSO would record all
observations of marine mammals, regardless of distance to construction
activities.
In addition to the daily pre-activity count data, at least one PSO
would monitor for haulout disturbances. This monitoring would continue
through the duration of the construction activity. Methods for
recording disturbances would follow a three-point scale as shown in
table 4. For each disturbance event, the disturbance source and seal
response would be recorded and tallied. We specifically note that only
observations of disturbance levels 2 and 3 would be recorded as
takings.
Table 4--Levels of Pinniped Behavioral Disturbance
----------------------------------------------------------------------------------------------------------------
Level Type of response Definition
----------------------------------------------------------------------------------------------------------------
0.................................... Observation............ Observation by PSO; no disturbance to pinniped.
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 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.
----------------------------------------------------------------------------------------------------------------
Note: Only Levels 2 and 3 would be recorded as takes by Level B harassment.
[[Page 14825]]
Reporting
A draft marine mammal monitoring report would be submitted to NMFS
within 90 days following the end of the project activities or 60
calendar days prior to the requested issuance of any subsequent IHA for
similar activity at the same location, whichever comes first. The draft
summary report would include an overall description of the construction
activities completed, a narrative regarding marine mammal sightings,
and associated raw PSO data sheets (in electronic spreadsheet format).
Specifically, the report must include:
<bullet> Dates and times (begin and end) of all marine mammal
monitoring;
<bullet> Start and end time of activity;
<bullet> PSO location during marine mammal monitoring;
<bullet> Environmental conditions during monitoring periods;
<bullet> Seal census data from pre-activity haul-out monitoring
including
<bullet> Time of the sighting;
<bullet> Identification of the animal(s) (e.g., genus/species,
lowest possible taxonomic level, or unidentified), observer confidence
in identification, the composition of the group if there is a mix of
species;
<bullet> Estimated number of animals (min/max/best estimate);
<bullet>Estimated number of animals by cohort (e.g., adults,
juveniles, neonates, group composition, etc.);
<bullet> Details of any marine mammal behavioral disturbances,
including information regarding the activity, the estimated distances
between the activity and seals when disturbance occurs, the type of
behavioral response to the disturbance (according to the 3-point scale
as shown in table 2), and the estimated number of seals taken (by
species and age class if possible); and
<bullet> Detailed information about implementation of any
mitigation, a description of specified actions that ensured, and
resulting changes in behavior of the animal(s), if any.
If no comments are received from NMFS within 30 days after the
submission of the draft summary report, the draft report would
constitute the final report. If BLM receives comments from NMFS, a
final summary report addressing NMFS' comments must be submitted within
30 days after receipt of comments.
Additionally, BLM would report all observations of marked or tag-
bearing pinnipeds or carcasses and unusual behaviors, or numbers of
pinnipeds to the NMFS West Coast Regional Office.
Reporting Injured or Dead Marine Mammals
In the event that personnel involved in the construction activities
discover an injured or dead marine mammal, BLM would report the
incident to the NMFS Office of Protected Resources
(<a href="/cdn-cgi/l/email-protection#174745395e4347395a78797e6378657e797045726778656364577978767639707861"><span class="__cf_email__" data-cfemail="7525275b3c21255b381a1b1c011a071c1b122710051a070106351b1a14145b121a03">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#d29b8682fc94beb7bfbbbcb592bcbdb3b3fcb5bda4"><span class="__cf_email__" data-cfemail="1a534e4a345c767f7773747d5a74757b7b347d756c">[email protected]</span></a>) and the
NMFS West Coast Regional Stranding Coordinator ((562) 980-3230). If
death or injury was clearly caused by the specified activity, BLM would
immediately cease the specified activities until NMFS is able to review
the circumstances of the incident and determine what, if any,
additional measures are appropriate to ensure compliance with the terms
of the IHAs. The BLM would not resume their activities until notified
by NMFS. The report must include the following information:
1. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the
animal(s) involved incident;
3. Condition of the animal(s) (including carcass condition if the
animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. Photographs or video footage of the animal(s) (if the equipment
is available); and
6. General circumstances under which the animal was discovered.
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).
To avoid repetition, the discussion of our analysis applies to
California sea lions, Steller sea lions and harbor seals, given that
the anticipated effects of this activity on these different marine
mammal stocks are expected to be similar. There is little information
about the nature or severity of the impacts, or the size, status, or
structure of any of these species or stocks that would lead to a
different analysis for this activity.
Construction activities have the potential to disturb or displace
marine mammals. Specifically, the project activities may result in
take, in the form of Level B harassment from the construction crew's
movements and equipment handling. Potential takes could occur if
individuals of these species are present nearby when these activities
are underway. No injuries or mortalities are anticipated to occur as a
result of BLM's Mal Coombs Stairway Replacement Project, and none are
proposed to be authorized.
Typically, even those reactions constituting Level B harassment
would result, at most, in a temporary, short-term behavioral
disturbance. Construction crew would be present on site for no more
than 2 consecutive days, and only four 8-hour construction days are
planned in total. Therefore, disturbance of pinnipeds resulting from
the presence of construction crew would last only for short periods.
Of the marine mammal species anticipated to occur in the proposed
activity areas, none are listed under the ESA, and there are no known
areas of biological importance in the project area. Taking into account
the planned mitigation measures, effects to marine mammals are
generally expected to be restricted to short-term changes in behavior
or temporary displacement from haul-out sites, pinnipeds are not
expected to permanently abandon any area. No adverse effects to prey
species are anticipated as no work would occur in-water, and habitat
impacts are limited and highly localized, consisting of the placement
of two new landing
[[Page 14826]]
pads to support a stairway installation adjacent to the beach where
pinniped haul out. Based on this analysis of the likely effects of the
specified activity on marine mammals and their habitat, and considering
the implementation of the proposed mitigation and monitoring measures,
NMFS finds that the total marine mammal incidental take from BLM's
construction will not adversely affect annual rates of recruitment or
survival. Therefore, such incidental take will have a negligible impact
on the affected species or stocks.
In summary and as described above, the following factors primarily
support our preliminary 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> No take by Level A harassment is expected, or proposed for
authorization;
<bullet> The intensity of anticipated takes by Level B harassment
is relatively low for all stocks. Level B harassment would be in the
form of behavioral disturbance, resulting in temporary avoidance of the
haul-out adjacent to the construction site;
<bullet> Few pups are expected to be disturbed, and would not be
abandoned or otherwise harmed by other seals flushing from the area;
<bullet> No prey species (i.e., fish) would be affected by the
proposed activities. Therefore any associated impacts on marine mammal
foraging is not expected to result in significant or long-term
consequences for individuals, or to accrue to adverse impacts on their
populations;
<bullet> No impacts to pinniped habitat are anticipated; and
<bullet> Effects of the construction activities would be limited to
short-term, localized behavioral changes;
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 proposed monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the proposed activity will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals
may be authorized under section 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 (86 FR 5322,
January 19, 2021). Additionally, other qualitative factors may be
considered in the analysis, such as the temporal or spatial scale of
the activities.
NMFS is proposing to authorize incidental take by Level B
harassment of four species (four stocks) of marine mammals. The maximum
number of instances of takes by Level B harassment, relative to the
best available population abundance, is less than one-third for all
species and stocks potentially impacted (table 3).
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS preliminarily finds that small
numbers of marine mammals would 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 would
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 ESA of 1973 (16 U.S.C. 1531 et seq.)
requires that each Federal agency ensures 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 incidental take
authorizations, NMFS consults internally whenever we propose to
authorize take for ESA-listed 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 action.
Proposed Authorization
As a result of these preliminary determinations, NMFS proposes to
issue an IHA to BLM for conducting the Mal Coombs Stairway Replacement
Project at Shelter Cove, CA, provided the previously mentioned
mitigation, monitoring, and reporting requirements are incorporated. A
draft of the proposed 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>.
Request for Public Comments
We request comment on our analyses, the proposed authorization, and
any other aspect of this notice of proposed IHA for the proposed Mal
Coombs Stairway Replacement Project. We also request comment on the
potential renewal of this proposed IHA as described in the paragraph
below. Please include with your comments any supporting data or
literature citations to help inform decisions on the request for this
IHA or a subsequent renewal IHA.
On a case-by-case basis, NMFS may issue a one-time, 1-year renewal
IHA following notice to the public providing an additional 15 days for
public comments when (1) up to another year of identical or nearly
identical activities as described in the Description of Proposed
Activity section of this notice is planned or (2) the activities as
described in the Description of Proposed Activity section of this
notice would not be completed by the time the IHA expires and a renewal
would allow for completion of the activities beyond that described in
the Dates and Duration section of this notice, provided all of the
following conditions are met:
<bullet> 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).
<bullet> The request for renewal must include the following:
1. 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).
2. A preliminary monitoring report showing the results of the
required monitoring to date and an explanation
[[Page 14827]]
showing that the monitoring results do not indicate impacts of a scale
or nature not previously analyzed or authorized.
<bullet> Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
Dated: March 23, 2026.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2026-05987 Filed 3-26-26; 8:45 am]
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 March 27, 2026.
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.